{"id":221523,"date":"2004-06-21T00:00:00","date_gmt":"2004-06-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shanmugam-vs-the-state-by-inspector-of-police-on-21-june-2004"},"modified":"2017-06-17T02:00:13","modified_gmt":"2017-06-16T20:30:13","slug":"shanmugam-vs-the-state-by-inspector-of-police-on-21-june-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shanmugam-vs-the-state-by-inspector-of-police-on-21-june-2004","title":{"rendered":"Shanmugam vs The State By Inspector Of Police on 21 June, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Shanmugam vs The State By Inspector Of Police on 21 June, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 21\/06\/2004\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE N.DHINAKAR\nAND\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nC.A.No.621 of 1996\n\n1. Shanmugam\n2. Sundaram @ Meenakshi Sundaram                .. Appellants\n\n-Vs-\n\nThe State by Inspector of Police\nKallal Police Station                           .. Respondent\n\n\n        This criminal appeal  is  preferred  under  Sec.374  of  the  Code  of\nCriminal Procedure against the conviction and sentence imposed by the Sessions\nJudge, P.M.T.  Division, in S.C.No.33 of 1996 dated 1.8.1996.\n\nFor Appellants :  Mr.T.Munirathina Naidu\n\nFor Respondent :  Mr.V.M.R.Rajendran\n                Additional Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
\n        The  appellants\/A-1  and  A-2,  who stood charged, tried, found guilty
\nunder Sec.366, 376 read with 34, 302 read with 34  and  379  of  I.P.C.    and
\nawarded a punishment of five years Rigorous Imprisonment for the offence under
\nSec.366  I.P.C.,  seven  years  Rigorous  Imprisonment  for  the offence under
\nSec.376 read with 34 I.P.C., life imprisonment for the offence  under  Sec.302
\nread with  34  I.P.C.   and acquitted of the charge under Sec.379 I.P.C., have
\nbrought forth this appeal aggrieved over the judgment of the learned  Sessions
\nJudge, Sivaganga.\n<\/p>\n
        2.   Short  facts  necessary  for  the  disposal of this appeal are as
\nfollows:\n<\/p>\n
        (a) P.W.1 Pondy, is  a  Maison  residing  at  Kallal.    His  daughter
\nVijayalakshmi aged 17 years, was the victim.  In the nearby house, one Ramayee
\nwas living,  and  A-1  is  the  sister’s  son  of  Ramayee.  A-1 used to visit
\nRamayee’s house.  15 days prior to the occurrence, P.W.1  found  his  daughter
\nclosely talking with A-1.  He warned her.  On 28.4.1992 , as usual, he went to
\nhis work  that  morning  and  returned  at  about 7.00 P.M.  At that time, his
\ndaughter was not found in the house.  On enquiry, he came  to  know  that  she
\nwent  with her friends Anandhi, Valarmathi and Chitra for taking bath at about
\n3.00 P.M.  But, she did not return.  He searched for her;  but,  she  was  not
\nfound.   In  the  morning, he went to the bazaar side in search of her, and at
\nthat time, he came to know from the passengers, who alighted a bus, which came
\nfrom Aranmanai Siruvayal, that a dead body of a female was found at the burial
\nground of that place.  Entertaining suspicion, he went over there in  a  cycle
\nand found  the  dead  body  of his daughter Vijayalakshmi with injuries.  From
\nthere, he went to his house, in order to ascertain the missing articles.    He
\nwas  also  informed  on  his  way by P.W.3 Murugesan and P.W.11 Kannan that on
\n28.4.1992 at 7.00 P.M., they found A-1 taking the victim  in  a  bicycle,  and
\nthey were  also  accompanied  by the second accused in another cycle.  He went
\nover to his house and found that  the  gold  jewels  and  currency  were  also
\nmissing.   Then,  he  went  over  to  the Police Station, Kallal, where P.W.14
\nIsrael, Head Constable, was present.  His statement was reduced  into  writing
\nat 2.15 P.M.  on 29.4.1992.\n<\/p>\n
        (b)  On  the  strength of the said complaint, a case in Crime No.29\/92
\nwas registered under Sec.302 I.P.C.  by P.W.14.  Then  the  First  Information
\nReport Ex.P16  was  despatched to the Court concerned.  P.W.16, Sevathiah, the
\nInspector of Police, Rural Sivaganga, on receipt of the copy  of  the  F.I.R.,
\ntook  up the investigation, proceeded to the scene of occurrence at about 3.30
\nP.M.  and prepared an observation mahazar Ex.P2 and  a  rough  sketch  Ex.P22.
\nThe photographs were taken through P.W.8 Somasundaram, a Photographer, and the
\nsame was marked as M.O.18 (series).  He conducted the inquest on the dead body
\nof the deceased  between  4.00  P.M.    and 6.00 P.M.  on the same day, and he
\nprepared the inquest report Ex.P23.  M.O.6 bloodstained earth and M.O.7 sample
\nearth were recovered under a mahazar Ex.P3.  M.Os.8 to 14 were also  recovered
\nfrom the  place  of  occurrence.  He examined P.Ws.1, 3, 5 and 11 and recorded
\ntheir statements.  A request was forwarded  to  the  Medical  Officer  through
\nP.W.13  Karuppiah,  a Constable, for conducting postmortem on the dead body of
\nthe deceased.\n<\/p>\n
        (c) P.W.9 Dr.Kannappan, on receipt of the said requisition,  conducted
\nthe autopsy and noted the following:\n<\/p>\n
A  well  nourished  body of a female lying on its back with the high degree of
\ndecomposition.  Oedematous, pealed skin with vesicles all over.
\nThe limbs – No injuries present.\n<\/p>\n
Tongue protruding out.  Eyes closed.  Blood discharge  from  mouth,  nose  and
\nears.  Hyoid bone left horn fractured.\n<\/p>\n
Thorax:  No evidence of fracture of ribs.  Heart:  Empty.
\nLungs:  Congested.  Abdomen:  Distended.  Stomach:  Empty.
\nLiver, spleen and kidneys congested.  No evidence of internal injuries.  Empty
\nuterus, normal in size.  No evidence of pregnancy.  Bladder empty.  Skull:  No
\nfracture.  No sutural separation.  Brain matter completely liquified.
\nHe has  issued  Ex.P10 postmortem certificate.  He has given his final opinion
\nunder Ex.P11 report that the deceased would appear to have  died  of  Asphyxia
\nleading  to  Cardio  respiratory  failure  about  more  than 48 hours prior to
\npostmortem.\n<\/p>\n
        (d) On 30.4.1992, P.W.16 examined P.Ws.4, 9 and 13 and recorded  their
\nstatements.   He  arrested  A-2 at Karaikudi Old Bus Stand on 9.5.1992 at 3.30
\nP.M.  Pursuant to his arrest, A-2 gave a  confessional  statement,  which  was
\nrecorded  by the Investigating Officer, and the admissible part of the same is
\nmarked as Ex.P12.  Pursuant to the said confession, M.O.2 cycle was  recovered
\nunder Ex.P14  mahazar.    A-1  surrendered  before  the  Judicial  Magistrate,
\nDevakottai, on 12.5.1992.  On a  requisition  before  that  Court,  the  Court
\npassed an  order,  and  on  19.5.19  92, A-1 was taken to police custody.  The
\nconfessional statement of A-1, which was voluntarily made, was recorded.   The
\nadmissible part  of  the same is marked as Ex.P5.  Pursuant to the confession,
\nA-1 has taken the police officials, and also he  showed  one  Ravichandran  at
\nKaraikudi,  from  whom,  M.O.1  gold chain was also recovered under a mahazar.
\nFrom one Parvathi, M.O.3 currency of Rs.1,600\/- were also  recovered  under  a
\nmahazar.  All  the recovered articles were despatched to the Court.  After the
\nrecovery of the jewels, P.W.1 was summoned, and he identified all the  jewels.
\nOn  a  requisition  made by the police official, a letter was forwarded by the
\nJudicial  Magistrate  to  the  Forensic   Science   Department,   and   P.W.15
\nAthmanathan,  Head  Clerk,  Judicial Magistrate’s Court was also examined, who
\nhas deposed that the requisition of the Court was Ex.P19, which brought  forth
\nthe chemical  analyst’s  report  Ex.P20  and  serologist’s  report Ex.P21.  On
\ncompletion of  the  investigation,  the  final  report  was  filed  by  P.W.17
\nVeluchamy, the successor of P.W.16.\n<\/p>\n
        3.   The  learned  Sessions Judge, Sivaganga, framed the above charges
\nagainst the accused, and in  order  to  prove  the  charges,  the  prosecution
\nmarched 17  witnesses  and  relied on 24 exhibits and 25 material objects.  On
\ncompletion of the evidence on the side of the prosecution,  the  accused  were
\nquestioned  under  Sec.313  of  the  Code  of  Criminal  Procedure  as  to the
\nincriminating circumstances found in the evidence  of  the  witnesses.    They
\nflatly denied  the  same as false.  No defence witnesses were examined, and no
\nexhibits were  marked  on  the  side  of  defence.    The  trial   Judge,   on
\nconsideration  of  the  rival submissions and scrutiny of the materials, found
\nthem guilty as per the charges framed against them and awarded the  punishment
\nas found  above.    The  said  judgment of conviction and sentence is assailed
\nbefore this Court.\n<\/p>\n
        4.  The learned Counsel appearing for the appellant in his attempt  to
\nsee  the  impugned  judgment  set  aside  by  this Court would submit that the
\nprosecution had no direct evidence; that  the  witnesses  marched  before  the
\ntrial  Court  were  thoroughly  unreliable; that the prosecution relied on two
\nwitnesses, who, according to them, saw the deceased before the occurrence, and
\nthey were P.Ws.3 and 11; that it is pertinent to point  out  that  P.W.11  has
\nturned  hostile;  that  the  evidence  of P.W.3 is highly improbable; that the
\nrecovery part which was relied on by the prosecution, has also  been  rejected
\nby  the  lower Court; that the chemical analyst’s report is of no avail to the
\nprosecution case; that apart from that, the medical evidence was  also  of  no
\nhelp  to  the  prosecution  case,  and  under  such  circumstances,  when  the
\nprosecution could not bring forth the guilt of the accused  in  any  way,  the
\nlower  Court  on an extraneous consideration found them guilty and awarded the
\npunishments, and it has got to be set aside.\n<\/p>\n
        5.  We have also heard the learned  Additional  Public  Prosecutor  on
\nthose contentions.\n<\/p>\n
        6.   After careful consideration of the rival submissions, made, and a
\nthorough scrutiny of the available  materials,  this  Court  is  of  the  firm
\nopinion  that the prosecution has thoroughly failed in bringing home the guilt
\nof the accused.\n<\/p>\n
        7.  The gist of the prosecution case was that A-1 for the  purpose  of
\nmarrying  the deceased Vijayalakshmi, aged 17 years, kidnapped her on the date
\nof occurrence namely 28.4.1992 in a bicycle, and they were also accompanied by
\nA-2 in another cycle.  According to  the  prosecution,  two  witnesses  namely
\nP.Ws.3 and 11 have seen the deceased, at about 7.00 P.M.  on the day, when she
\nwas  taken  in  a bicycle by A-1, and A-2 has also accompanied them in another
\ncycle.  It is pertinent to point out that out of P.Ws.3  and  11,  P.W.11  has
\nturned  hostile,  and  thus,  the  only  witness available in the hands of the
\nprosecution was P.  W.3.  On scrutiny of the evidence of P.W.3, this Court  is
\nunable  to  infer  anything that the deceased Vijayalakshmi aged 17 years, was
\nactually kidnapped by A-1; but, it was a voluntary act made  by  her,  because
\nshe was a patient pillion rider at that time.  Therefore, this Court is unable
\nto  see  any act of kidnapping that could be attributed, in view of the proved
\nfacts of the case.\n<\/p>\n
        8.  The further case of the prosecution was  that  A-1  has  committed
\nrape  on  her, and she was also murdered, and in that, A-2 has also been along
\nwith A-1 and abetted the crime.  Even according to the prosecution, P.Ws.3 and
\n11 were the persons, who have last seen the deceased at about 7.00 P.M.,  when
\nshe  was  taken  in  a bicycle by A-1 and accompanied by A-2 in another cycle.
\nExcept one circumstance, found in the evidence,  nothing  else  is  available.
\nAccording  to  the  prosecution, P.W.3 has seen the deceased in the company of
\nA-1 at about 7.00 P.M.  on 28.4.1992 at a place called Kallal.  It is a matter
\nof surprise to note that even according to P.W.1, the  father  of  the  victim
\ngirl, who returned from his work at about 7.00 P.M.  that day, he did not find
\nhis daughter, and on enquiry, he came to know that she went to take bath along
\nwith her  friends;  but,  she  did  not  return back.  At this juncture, it is
\npertinent to point out that P.W.1 neither searched for her at  that  time  nor
\nwent  to  the  police  station,  which  is situated in Kallal itself to give a
\ncomplaint.  According to P.W.1, the next day morning, he went  to  the  bazaar
\nand  made a search, and then, he came to know that a dead body is found at the
\nburial ground of Aranmanai Siruvayal.  On coming to know  that  his  daughter,
\nthe  victim  girl,  aged 17 years, did not return home, P.W.1 did not make any
\nattempt at all in search of her during the night hours; but, he  searched  for
\nher after  a  period  of  12  hours.  This conduct of P.W.1 is contrary to the
\nconduct  of  any  ordinary  prudent  person  under  the  given  situation  and
\ncircumstance.   Even  according  to P.W.1, he came to know from the passengers
\nalighted from the bus coming from Aranmanai Siruvayal that  a  dead  body  was
\nfound  at  the  burial  ground  of Aranmanai Siruvayal, and then, he went over
\nthere by bicycle and found the dead body of his  daughter  with  injuries,  at
\nabout 11.00  A.M.;  but,  he  returned  home.    As rightly pointed out by the
\nlearned Counsel for the appellants, his conduct  again  was  contrary  to  the
\nordinary conduct  of  a prudent person.  Even as per the evidence of P.W.1, he
\ndid not go to the police station even  after  seeing  the  dead  body  of  his
\ndaughter;  but, he returned home to find out the articles, which were missing.
\nTherefore, it is  yet  another  circumstance,  which  casts  a  doubt  on  his
\nevidence.\n<\/p>\n
        9.   After  getting  a complaint, the investigation has proceeded, and
\nthe dead body was found.  Following the inquest, the dead body  was  sent  for
\npostmortem,  and  autopsy  was conducted by P.W.9, the Doctor, who has given a
\ncertificate.  Even according to the prosecution, the victim girl was raped and
\nan offence of murder was also committed by the  accused.    But,  the  medical
\nevidence  is  contrary  to  the  case of the prosecution, since the Doctor has
\nfinally opined under Ex.P11 report that the deceased would appear to have died
\nof asphyxia leading to cardio respiratory failure about 48 hours prior to  the
\nautopsy.   The  final  report  does not speak of anything or indicate that she
\nwould have been raped; but, the opinion that has been referred to above  would
\nclearly  show  that  the  death  was  due to the failure of cardio respiratory
\nsystem, and it would not indicate in any way that she was murdered or it was a
\nhomicidal death.  Thus, the medical evidence what is recorded,  would  clearly
\nstand against the prosecution case that she was either raped or murdered.\n<\/p>\n
        10.  The learned Additional Public Prosecutor would point out that the
\nlower  Court  has  not considered the recovery part because at the time of the
\npolice custody, A-1 has given a confessional statement pursuant to  which  the
\njewels  were  recovered under a mahazar, and they have also been identified by
\nP.W.1, and he stated that they belonged to him, and  they  were  worn  by  the
\nvictim girl  at the time of occurrence.  A perusal of the relevant part of the
\njudgment of the Court below would clearly indicate that the Sessions Court was
\nperfectly correct in rejecting the testimony of P.W.1, and the finding of  the
\nCourt below  is  based on sound reasons.  This Court has to necessarily accept
\nthe same.\n<\/p>\n
        11.  What was available was the only circumstance  that  the  deceased
\nwas found  in  the company of A-1 at about 7.00 P.M.  on 28.4.1992, from which
\nat no stretch of imagination, it can be inferred that the accused have  either
\nkidnapped or raped or murdered her, and in the face of the evidence, it has to
\nbe held  contrarily.    Without  proper  perception of the evidence, the lower
\nCourt has taken an erroneous view, which has got to be necessarily  set  aside
\nonly by upsetting the judgment of the Court below.\n<\/p>\n
        12.   In  the  result,  this  criminal  appeal  is  allowed,  and  the
\nconviction and sentence imposed on the appellants\/A-1 and  A-2  by  the  lower
\nCourt  are  set  aside,  and the appellants\/A-1 and A-2, who are lodged in the
\nCentral Prison, Madurai, are directed to be set at liberty  forthwith,  unless
\ntheir presence is required in any other case.\n<\/p>\n
Index:  yes
\nInternet:  yes<\/p>\n
To:\n<\/p>\n
1.  The Principal Sessions Judge, Pasumpon Muthuramalinga
\nThevar District, Sivaganga.\n<\/p>\n
2.  The District Collector, Sivaganga District.\n<\/p>\n
3.  The D.G.P., Chennai.\n<\/p>\n
4.  The Public Prosecutor, Madras.\n<\/p>\n
5.  The Superintendent, Central Prison, Madurai.\n<\/p>\n
nsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Shanmugam vs The State By Inspector Of Police on 21 June, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21\/06\/2004 CORAM THE HONOURABLE MR.JUSTICE N.DHINAKAR AND THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.A.No.621 of 1996 1. Shanmugam 2. Sundaram @ Meenakshi Sundaram .. Appellants -Vs- The State by Inspector of Police Kallal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-221523","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nShanmugam vs The State By Inspector Of Police on 21 June, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shanmugam-vs-the-state-by-inspector-of-police-on-21-june-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shanmugam vs The State By Inspector Of Police on 21 June, 2004 - 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