IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06/04/2004
CORAM
THE HONOURABLE MR. JUSTICE V. KANAGARAJ
AND
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
CRIMINAL APPEAL No.32 OF 1997
1. Chinna Thambi
2. Nadimuthu ......Appellants /
Accused 1 and 2
-Vs-
State By Inspector of Police,
Adhiramapattinam Police Station,
Adhiramapattinam. .....Respondent
Criminal Appeal, under Section 374(2) of Criminal Procedure
Code against the judgment dated 07.11.1996 passed by the learned Principal
Sessions Judge, Thanjavur in S.C.No.73 of 1996, as stated therein.
!For Appellants :: Mr. A. Natarajan
^For Respondent :: Mr. E. Raja
Additional Public Prosecutor
:J U D G M E N T
(Judgment of the court was delivered by R.BANUMATHI, J)
The appellants are accused 1 and 2 in S.C.No.73 of 1996 on the
file of Principal Sessions Court, Thanjavur. By the judgment dated
07.11.1996, learned Principal Sessions Judge, Thanjavur convicted the
appellants / accused 1 and 2 under Sec.302 read with Sec.34 of I.P.C and
sentenced each of them to undergo Life Imprisonment. By the same judgment,
for causing the evidence to disappear, the appellants were also convicted
under Section 201 of I.P.C., for which, the appellants were sentenced to
undergo Rigorous Imprisonment for four years.
2. The case of prosecution could briefly be stated thus:
One Mala was married to one Dhanabal and she gave birth to a male
child. Thereafter she was deserted by the said Dhanabal. Subsequently, Mala
developed intimacy with A-1-Chinnathambi. Later, the said Mala is said to
have had illicit intimacy with the deceased Kulandaivelu, much to the
disliking of A-1-Chinnathambi. A -1-Chinnathambi warned Mala to desist from
that intimacy, for which Mala refused to oblige due to which, A-1-Chinnathambi
developed grudge against Kulandaivelu and hatched a plan with A-2-Nadimuthu,
who is a close friend of A-1, to do away with Kulandaivelu.
3. On 13.05.1994, at about 06.00 p.m., the deceased Kulandaivelu had
hired a cycle from the cycle shop of P.W.10-Srinivasan. A-1 and A-2 are
alleged to have taken Kulandaivelu with them. On the same day, at about 10.30
p.m., near Pillaiyar Temple at South Mannankadu, P.W.3 – Marimuthu had noticed
A-1-Chinnathambi, A-2-Nadimuthu and deceased Kulandaivelu with a cycle.
P.W.3-Marimuthu flashed a torch light and saw them proceeding.
4. On 13.05.1994, at about 11.00 p.m., P.W.4-Periyasamy went near
Adampudi Odai bund to answer the calls of nature and at that time he saw
A-1-Chinnathambi carrying a gunny bag on his head and A-2Nadimuthu going along
with him towing a cycle.
5.Complaint by Village Administrative Officer: On 16.05.1994 at about
11 a.m., P.W.1-Govindasamy, Village Administrative Officer, was informed about
a dead body being buried in a gunny bag at Adampudi Odai eastern bund. On the
same day, P.W.1-Govindasamy sent Ex.P.1Complaint to the Sub-Inspector of
Police, Athirampattinam Police Station, stating about the burial of the dead
body in a gunny bag at Adampudi Odai eastern bund.
6. Registration of case: On the basis of Ex.P.1-complaint dated 16.0
5.1994, P.W.16-Jameen, Sub-Inspector of Police, Athirampattinam registered a
case in Crime No.275 of 1994 under Sec. 302 I.P.C on 16.05.19 94. The
express report was sent to the concerned officers, including P.W.11-Chinnappa,
Executive Magistrate and Tahsildhar of Pattukkottai.
7. Exhumation and Inquest: On receipt of the copy of the First
Information Report, P.W.11-Executive Magistrate and Tahsildhar of Pattukkottai
came to the spot- Adampudi Odai bund along with P.W.12-Dr. Sarojini (to
conduct spot autopsy). The place where the body was dug was inspected. As
per the directions given by P.W.11-Executive Magistrate and Tahsildhar,
P.W.7-Rajendran, dug the place. P.W.11 disinterred the body and held inquest
over the same. Witnesses were examined and their statements were recorded.
P.W.6-Rangasamy-father of the deceased, P.W.2-Thamilselvi- sister of the
deceased and the above said Mala were examined during the inquest. The dead
body was in a highly decomposed stage, but able to be identified as that of
Kulandaivelu. P.Ws.2 and 6 have identified the decomposed body as that of
Kulandaivelu. The body of the deceased was found to be strangulated with a
towel on its neck. Ex.P.11 is the Inquest Report.
8. Post Mortem: Pursuant to the requisition from P.W.11-Executive
Magistrate and Tahsildhar, P.W.12-Dr.Sarojini has conducted spot autopsy. The
body, which was in a highly decomposed stage, found packed in a gunny bag, but
able to be identified as that of Kulandaivelu with shortening of leg,
deformity found in the left leg. There is overriding of 4th toe over the
third in the left side leg. Skin peeled off from the body. Foul smelling
maggots found flying. There is towel found around the neck. Not able to
identify the external injury. Fracture of left Hyoid was noted. Viscera was
sent for chemical analysis. After the receipt of Viscera, P.W.12-Dr.Sarojini
gave opinion, opining that the deceased would have died of asphyxia due to
strangulation.
9. Further Investigation: In Ex.P.11-Inquest Report dated 23.05.1994
, P.W.11-Executive Magistrate and Tahsildhar of Pattukkottai expressed his
opinion on the suspicious death of Kulandaivelu. Hence, P.W.17
-Kandasamy-Inspector of Police had taken up the further investigation. He has
prepared Ex.P.5-Observation mahazar dated 16.05.1994 at the scene of
occurrence. M.O.9-photograph of Kulandaivelu was seized. After exhumation
and other proceedings, M.O.3-Lungi, M.O.5-Towel, M.O.13-Brief and M.O.6-Waist
cord were seized by P.W.17-Inspector of Police under Form 95.
10.Arrest of the accused:A-2-Nadimuthu was arrested on 22.05.1994 at
about 03.00 p.m., near Thuvarangurichi Road Junction in the presence of
P.W.9-Govindasamy and P.W.8-Raman. When A-2-Nadimuthu was interrogated, he
had voluntarily given a confession statement. Ex.P.2 is the admissible
portion of the said confession statement. On the same day, at about 06.00
p.m., A-1-Chinnathambi was also arrested in Pattukkottai bus stand. Both
A-1-Chinnathambi and A-2-Nadimuthu were sent to judicial custody on
23.05.1994. On completion of the investigation, charge sheet was filed
against the accused under Sec.302 I.P.C read with Sec.34 I.P.C and Sec.201
I.P.C.
11. Recovery of the material objects: Pursuant to the confession
statement given by A-2-Nadimuthu, M.O.1-cycle was recovered from Adampudi Odai
bund under Ex.P.3-seizure mahazar. On being identified from behind the house
of A-1-Chinnathambi, M.O.2-Spade was seized under Ex. P.4-seizure mahazar, in
the presence of the above said witnesses.
12. To substantiate the charges against the accused in the trial
court, P.Ws.1 to 17 were examined. Exs.P.1 to 18 were marked. M.Os.1 to 13
were produced. When the accused were questioned under Section 31 3 Crl.P.C.,
about the incriminating circumstances and evidence, denying all the charges,
the accused stated that a false case is foisted against them.
13. Upon consideration of the evidence and the defence version,
learned Principal Sessions Judge, Thanjavur found that due to previous enmity,
A-1-Chinnathambi and A-2- Nadimuthu strangulated the deceased Kulandaivelu
with M.O.5-Towel and caused the death. It was further held that accused 1 and
2 were proved to have caused disappearance of evidence in Adampudi Odai
Erikkarai. On those findings, the appellants / accused 1 and 2 were found
guilty, convicted and sentenced them to undergo Life Imprisonment as aforesaid
in para (1).
14. Learned counsel Mr. A.Natarajan, appearing for the appellants /
accused, contended that the prosecution has not firmly established the
circumstances. Submitting that the evidence on motive aspect and the scene of
occurrence are absolutely wanting, learned counsel further contended that
there was an enormous delay of nearly one week in sending the inquest report
and that the statements of key witnesses like P.W.3-Marimuthu and
P.W.4-Periyasamy, which was not properly appreciated by the trial court. The
arrest of the accused and recoveries of M.O.1-cycle and M.O.2-spade are also
assailed contending that they do not in any way establish the complicity of
the appellants / accused in the offence.
15. Countering the arguments of the appellants / accused, Mr. E.
Raja, learned Additional Public Prosecutor submitted that the trial court has
well appreciated the evidence on the circumstances adduced by the prosecution
and that the reasonings for conviction are based on the materials available on
record. Learned Additional Public Prosecutor further submitted that
Ex.P.11-Inquest Report dated 23.05.1994 sufficiently establishes the motive
aspect. He has also submitted that there is no strong reason warranting
interference by this Court.
16. Upon careful reassessment of the evidence, impugned judgment and
the submissions of both sides, the following points arise for determination in
this appeal:
(1) Whether the prosecution has conclusively established the
circumstances?
(2) Whether the guilt of the appellants / accused 1 and 2 is proved
beyond reasonable doubt?
(3) Whether the trial Court was right in finding that the
circumstances are completely established pointing to the guilt of the accused?
(4) Whether the conviction of the appellants could be sustained?
17. Identification of the dead body as Kulandaivelu:
The dead body was highly decomposed, but was able to be identified as
that of Kulandaivelu. P.W.6 and P.W.2, father and sister of the deceased
identified the dead body as that of Kulandaivelu. The deceased Kulandaivelu
was having deformity and shortening of leg. In their evidence, P.Ws.2 and 6
have clearly spoken to about the deformity of the left leg of Kulandaivelu.
The gist of their evidence is as follows:
“,lJ fhy; Cdk;/ mij itj;J ehd; milahsk; fhz;gpj;njd;/ ,lJ fhy;
tpuy;fs; Nk;gp ,Uf;Fk;/ nkYk; tpuy;fs; xd;W nky; xs;W gpd;dpaJ nghy; ,Uf;
Fk;.”
18. P.W.12-Dr.Sarojini has also noted the said deformity, that is,
overriding of fourth toe over the third in the left side leg. Thus, the
identity of Kulandaivelu is clearly brought out by the deformity of the left
leg.
19. Identification of the exhumed body is proved to be that of
Kulandaivelu by scientific evidence also. For identifying the body, skull was
preserved for Super Imposition Test. P.W.12-Dr.Sarojini had preserved the
skull of the deceased Kulandaivelu for being sent to Super Imposition Test to
the Forensic Science Laboratory, Chennai. Pursuant to Ex.P.15-requisition
from the Inspector of Police, the skull was sent along with M.O.9-photograph
to establish the identification of the deceased Kulandaivelu scientifically
since the body of the deceased was disinterred after six days of burial. The
image of the skull and face photograph were subjected to Electronic Skull
Identification Device by Video for superimposing the images of the skull and
the face photograph. The image of the skull when superimposed with the image
of the above face it was observed that the face and skull outlines were found
to be in agreement, together with the anthropometric land marks on them. The
scientific officer issued Ex.P.17, Super Imposition Test Report, opining that
the skull item could have belonged to the male individual in
M.O.9-Photograph-that is Kulandaivelu. Thus, the identity of the disinterred
body is convincingly established as that of Kulandaivelu.
20. Homicidal Death: The dead body was found buried, packed in a
gunny bag in a hidden place near Adampudi Odai kilkkarai. There was fracture
of left horn of Hyoid. Even at the time of exhumation, P.Ws.11 and 12 noted
that the neck of the deceased was tightened with M.O.5towel. P.W.12-
Dr.Sarojini was subjected to elaborate crossexamination by the defence. She
stuck to her position that Hyoid bone fracture was antemortem in nature. The
death of deceased Kulandaivelu is thus proved as Homicidal by the
unimpeachable evidence of P.W.12-Dr. Sarojini and the manner in which the
body was buried packed in a gunny bag.
21. But, the main point for consideration is whether A-1,
Chinnathambi and A-2, Nadimuthu are proved to be responsible for the Homicidal
death of Kulandaivelu?
22. Even at the outset, we may point out that there is no direct
evidence for the occurrence; the case of prosecution is based upon only the
circumstantial evidence. To bring home the guilt of the accused, the
prosecution relies upon the following circumstances:
(1) Motive – that the deceased Kulandaivelu developed intimacy with
Mala, much to the disliking of A-1-Chinnathambi ;
(2) on 13.05.1994 at about 10.30 p.m., the deceased Kulandaivelu was
last seen alive in the company of the accused. (evidence of P.W.3Marimuthu)
(3) on 13.05.1994 at about 11 p.m., P.W.4-Periyasamy saw
A-1Chinnathambi carrying a gunny bag on his head and A-2-Nadimuthu towing the
cycle.
(4) Arrest of A-2-Nadimuthu at about 03.00 p.m., on 23.05.1994;
recovery of M.O.1-cycle said to have been taken on hire by the deceased
Kulandaivelu from the cycle shop of P.W.10 and also recovery of M.O.2-spade.
It is to be seen whether the evidence adduced by prosecution in support of the
above circumstances are firmly established unerringly pointing to the guilt of
the appellants / accused.
23. Before adverting to the evidence adduced by the prosecution, we
may point out the serious lacuna on the part of the investigation in
investigating the scene of occurrence. The case of the prosecution is that
the deceased Kulandaivelu has been strangulated with M.O.5towel by
A-1-Chinnathambi and A-2-Nadimuthu near Adampudi Odai bund, but the evidence
is absolutely found to be wanting on the scene of occurrence. Ex.P.10-the
plan prepared by P.W.11-the Executive Magistrate and the Tahsildhar refers
only to exhumation spot and not the scene of occurrence. Likewise,
Ex.P.6-observation mahazar prepared by P.W.11-the Executive Magistrate and the
Tahsildhar also refers only to the place of exhumation and not the scene of
occurrence. The lack of evidence on the scene of occurrence creates serious
dent in the prosecution case and in the investigation.
24. In the above backdrop, let us consider the evidence adduced by
the prosecution towards establishing the circumstances.
25. Circumstance 1 – Motive:
Prosecution case is that one Mala was married to one Dhanabal
and gave birth to a male child. Thereafter, she was deserted by the said
Dhanabal. Further case of the prosecution is that the said Mala was having
illicit intimacy with A-1-Chinnathambi and later developed intimacy with
Kulandaivelu much to the disliking of A-1- Chinnathambi. It is also the case
of the prosecution that A-1-Chinnathambi warned Mala to desist from
Kulandaivelu, for which she did not oblige, due to which A-1-Chinnathambi
developed grudge towards the deceased Kulandaivelu. It is to be noted that
the best person to speak about the motive aspect would be the said Mala; but
she was not examined during the investigation by P.W.17. The said Mala was
examined by P.W.11Executive Magistrate and Tahsildhar during the inquest, with
whom the said Mala stated as under:
“……Mdhy; fle;j fhy eltof;iffis bfhz;L jpUnt’;flk; njhg;gpy; trpj;J
te;j rpd;djk;gp kPJ re;njfg;gLk;go cs;sJ vd;gij bjhptpj;Jf;bfhs;
fpnwd;/////////////// Mfnt. ,we;J nghd FHe;ijntYtpd; bfhiyf;F rpd;djk;gp xU
fhuzfh;j;jhthf ,Ug;ghnuh vd re;njfpf;Fk; epiyapy; cs;sJ”.
26. Thus, Mala seems to have expressed only doubt about the
complicity of A-1,Chinnathambi in the death of Kulandaivelu. That statement
of Mala before P.W.11-Executive Magistrate and Tahsildhar cannot be said to
have established the motive aspect for two reasons viz.,(i) that the statement
before P.W.11-Executive Magistrate and Tahsildhar is not the substantive
evidence; and (ii) the statement of Mala is purely based upon her surmise and
not a definite piece of evidence.
27. In their evidence, P.Ws.2 and 6-sister and father of the deceased
respectively have not stated anything about the illicit intimacy of
Kulandaivelu with Mala. Only P.W.5-Balaiyan, brother-in-law of the deceased
has made a mention of such relationship of Kulandaivelu with Mala. That
casual statement of P.W.5-Balaiyan, who is brother-inlaw of the deceased
Kulandaivelu, in our view, is hardly sufficient to establish the motive.
28. Hardly, there is any action without motive where the case of
prosecution is based on the evidence of eye witnesses, the existence or
non-existence of motive, sufficiency or insufficiency will not play a major
role as in the case based merely on circumstantial evidence. In cases of
circumstantial evidence, proof of motive is a material consideration. Absence
of proof of motive should be regarded in favour of the accused. This being
the case of circumstantial evidence, in our view, absence of proof of motive
adversely affects the prosecution case.
29. Circumstances 2 & 3:
According to P.W.3-Marimuthu, on the night of 13.05.1994 at about 10
.30 p.m., near Pillaiyar Temple at South Mannankadu, he noticed A-1,
Chinnathambi, A-2, Nadimuthu and deceased Kulandaivelu with a cycle, where
they were talking and proceeding. P.W.3-Marimuthu is alleged to have seen
them flashing the torch light. The trial court accepted the evidence of P.W.3
and found that the said circumstance was established. In our view, the trial
court was not right in accepting the evidence of P.W.3-Marimuthu without
testing the same for its reliability.
30. P.W.3-Marimuthu is said to have seen the accused proceeding along
with Kulandaivelu on the night of 13.05.1994 at about 10.30 p.m. If really,
he had seen them going on the said day, he would have disclosed the same
immediately to P.W.11-Executive Magistrate and Tahsildhar when the exhumation
was taken up on 16.05.1994. But, P.W.3Marimuthu has not come forward to state
before P.W.11-Executive Magistrate and Tahsildhar what he had seen on the
night of 13.05.1994. He was examined by P.W.17-Inspector of Police on the
night of 16.05.1994 and his statement under Section 161(3) Crl.P.C. was
recorded only on 16.05.1994. The said statement was received in the court
with much delay only on 23.05.1994. This throws serious doubts on the
evidence of P.W.3, which was not taken note of by the learned Principal
Sessions Judge, Thanjavur.
31. P.W.4-Periyasamy is alleged to have seen A-1, Chinnathambi on the
night of 13.05.1994 carrying a gunny bag on his head and A-2, Nadimuthu going
along with him by towing a cycle. Likewise in the case of P.W.3-Marimuthu,
P.W.4-Periyasamy has not come forward to disclose what he had seen on the
night of 13.05.1994. His statement was also recorded on 16.05.1994 and there
was delay in sending the same to the court. The delay in the receipt of
statement of P.W.4-Periyasamy also throws doubt on his evidence and the
reliability of P.W.4-Periyasamy. With the evidence of P.Ws.3 and 4, the
prosecution cannot be said to have established that the deceased Kulandaivelu
was last seen along with the company of the accused.
32. Circumstance 4:
A-2, Nadimuthu was arrested on 22.05.1994 at about 03.00 p.m., near
Thuvarangurichi Road Junction in the presence of P.W.9-Govindasamy and
P.W.8-Raman. On the basis of confession statement of A-2, Nadimuthu,
M.O.1-Cycle was recovered near Adampudi Odai bund under Ex.P.3Mahazar dated
22.05.1994. Further, from behind the house of A-1, Chinnathambi, M.O.2-Spade,
said to have been used for digging the pit was seized under Ex.P.4-Mahazar
dated 22.05.1994.
33. The prosecution heavily relies upon the recovery of M.O.1-Cycle
at the instance of A-2, Nadimuthu. The case of prosecution is that the
deceased Kulandaivelu had hired the M.O.1-cycle from the cycle shop of
P.W.10-Srinivasan, who is running a cycle shop in Madukkur. In his evidence,
P.W.10-Srinivasan has stated that M.O.1-cycle-Number-10 belongs to his cycle
shop. Ex.P.7 is the Register maintained in the cycle shop of
P.W.10-Srinivasan. Referring to Ex.P.8-entry made in Ex.P.7-Register,
P.W.10-Srinivasan has stated that the deceased Kulandaivelu had taken the
cycle on hire from his cycle shop on the evening of 13.05.1994 and he has not
returned the cycle. In our view, the evidence of P.W.10-Srinivasan does not
conclusively establish taking of cycle by deceased Kulandaivelu.
34. Admittedly, P.W.10-Srinivasan was not available in the cycle shop
on 13.05.1994 and he has no personal knowledge about the hiring of cycle by
Kulandaivelu. Only the employees, engaged by P.W.10 as in charge of the shop
were available on 13.05.1994. Thus, the evidence of P.W.10-Srinivasan is only
limited to the extent of the entry in the Register – Ex.P.8. The employees in
charge of the cycle shop on 13.05 .1994 were not examined to establish that
only the deceased Kulandaivelu had hired the cycle on 13.05.1994. That apart,
we may also point out that the statement of P.W.10-Srinivasan though said to
have been recorded on 23.05.1994, the same was received by the Court only on 1
7.05.1995 when the charge sheet was filed. In our view, no implicit reliance
could be placed upon the evidence of P.W.10-Srinivasan to connect M.O.1-cycle
with the deceased Kulandaivelu.
35. In case of circumstantial evidence, the prosecution has to
establish :
(i) Circumstances from which the conclusion of guilt is drawn;
(ii) The facts so established should be consistent only with the
hypothesis of the guilt of the accused that is to say that the circumstances
should be of conclusive nature and tendency pointing out to the guilt of the
accused ;
(iii) The circumstances taken jointly should form a chain so complete
that there is no escape from the conclusion that the crime was committed by
the accused and none else ;
36. On a careful consideration of the evidence adduced by the
prosecution, we find that the circumstances are neither firmly established nor
do they conclusively point to the guilt of the accused. On the basis of
evidence and materials made available on record, in our considered view, it
would be unsafe to convict the appellants. Hence, we are of the view the
conviction of the appellants / accused 1 and 2 cannot be sustained.
37. For the reasons stated above, the judgment of Principal Sessions
Judge, Thanjavur in S.C.No.73 of 1996 dated 07.11.1996, convicting the
appellants / accused 1 and 2 under Sec.302 read with Sec. 34 of I.P.C and
Sec.201 of I.P.C is set aside and the appeal is allowed. The appellants /
accused 1 and 2 are acquitted of all the charges and they are set at liberty
forthwith.
Index: Yes
Internet: Yes
Dpn/-
Copy to:
1. The Principal Sessions Judge,
Thanjavur.
2. The Superintendent,
Central Prison,
Trichy.
3. The Inspector of Police,
Adirampattinam Police Station,
Thanjavur District.
4. The Public Prosecutor,
High Court, Madras.