THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE N.AUTHINATHAN Crl.A.No.733 of 2016 and Crl.M.P.No.10933 of 2016 Manikandan @ Rajesh ... Appellant vs.
State, rep.by The Inspector of Police, Thirukkanur Police Station, Puducherry ... Respondent Criminal appeal preferred under Section 374(2) Cr.P.C., against the judgement dated 22.09.2016 passed by the III Additional District and Sessions Judge, (FAC/Principal Sessions Judge) Puducherry in S.C.No.15 of 2015.
For Appellant : Mr.JR.K.Karthikeyan For Respondent : Mr.V.Balamurugan,Addl.P.P.(Pondy) JUDGMENT (Judgement of the Court was delivered by S.Nagamuthu,J.) The appellant is the sole accused in Sessions Case No.15 of 2015, on the file of the III Additional District and Sessions Judge, (FAC/Principal Sessions Judge) Puducherry. He stood charged for the offences under Sections 302 and 182 of the Indian Penal Code. By judgement dated 22.09.2016, the trial Court convicted him under both charges and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- (no default sentence was imposed). Challenging the said conviction and sentence, the appellant has come up with this appeal.
2. The case of the prosecution in brief is as follows:
(a) The deceased in this case-Mrs.Vijaya, aged 40 years, was the mother of the accused. She was residing with the accused at No.9, Ellaiamman Koil Street, Thirukkanur, Puducherry. The deceased used to frequently quarrel with the neighbours. On 1.2.2015, at around 9.0 a.m., the deceased developed unnecessary quarrel with a neighbour. The accused came at that time to his house and tried to persuade the deceased not to quarrel with the neighbour. But the deceased further quarrelled and she did not stop. The accused thereafter took the deceased inside the house, slapped her, kicked her, strangulated her with hands and also strangulated her with a sacred thread worn by her. The deceased died inside the house. Thereafter, with a view to divert the truth, the accused gave a false complaint to the Station House Officer, Thirukkanur Police, Puducherry, making a statement that the deceased had committed suicide by hanging, using her saree, as a ligature.
(b) In order to prove the above charges, the prosecution has examined as many as 25 witnesses. P.W.1 is a Doctor, who conducted autopsy on the body of the deceased on 2.2.2015 at 9.00 a.m., as requested by the Investigating officer (P.W.25). He found the following injuries.
"External Injuries:
1. Abraded-contusion on the left side of the face, 5 cm left to midline, 0.5 cm from the lateral canthus of the eye, 7 cm from the tragus, measuring 1 cm X 0.8 cm in size. Red in colour.
2. Abraded-contusion on the left side of the face, 6 cm left to midline, 1 cm from lateral canthus, 6.5 c.m from the tragus, measuring 0.5 cm x 0.3 cm. Red in colour.
3. Abraded-contusion on the left side of the face, 7 cm left to midline, 2 cm from the lateral canthus, 4.5 cm from the left tragus, measuring 2.5 cm x 1 cm in size. Red in colour.
4. Abraded-contusion on the front of upper part of the neck. 0.5 cm left to the midline, 2 cm from the chin, 1 cm below the left ramus of the mandible, 12 cm above the supra-sternal notch, measuring 1 cm x 0.8 cm in size, rounded in shape and red in colour.
5. Abraded-contusion on the front of upper part of the neck, 2 cm left to midline, 1 cm below the left ramus of the mandible, 11.5 cm from the supra-sternal notch, measuring 1 cm x 0.5 cm in size, oval in shape and red in colour. 6.Abraded-contusion on the front of the upper part of the neck, 3 cm left to midline, 1.5 cm below the left ramus of the mandible, 11 cm from the supra-sternal notch, measuring 1 cm x 0.5 cm in size, oval in shape and red in clour. 7.Abraded-contusion on the front of upper part of the neck, 1 cm right to midline, 4.5.cm from the chin, 2.5 cm from the right ramus of the mandible, measuring 1.5 cm x 0.7 cm in size, oval in shape and red in colour.
8. Ligature mark on the neck: well-defined, pressure-abrasion, transversely placed, brownish and parchment-like on the right-side and back of the neck, at the level of the thyroid cartilage in the front of the neck, and just above the C6- vertebrae and 12 cm from the external occipital protruberance on the back of the neck. The ligature mark is 32cm in length, 0.3 cm in width (on the right) and 0.7cm in width (on the left), 10cm from the right mastoid, 8 cm from the left mastoid, and encircles on the right side of the neck and extends upto the level of the thyroid cartilage and ends in the midline. On the left side of the neck the ligature mark encircles the neck and extends just above the thyroid cartilage and ends in the midline, 2 cm above the ligature on the right side. The ligature mark has a spirally arranged pattern on the neck. The circumstance of the neck at the level of thyroid cartilage is 32 cm.
9. Abrasion on the right side back of chest, at the level of the T2 and T3 vertebrae, 9 cm right to midline, 8 cm below the tip of right shoulder, measuring 3 cm X0.5 cm in size, red in colour.
10. Abrasion on the right side back of chest, at the level of T10-vertebrae, 1 cm right to midline, measuring 2 cm x 0.5 cm in size, red I colour.
11. Abrasion on the left side back of chest, at the level of T3 ad R4 vertebrae, 9 cm left to midline, 10 cm below the tip of left shoulder, measuring 0.5 cm x 0.5 cm in size, red in colour. 12.Abrasion on the left side back of chest, at the level of the T4-vertebrae, 10.5 cm left to midline, 13 cm below the tip of left shoulder, measuring 0.5 cm x 0.1 cm, red in colour.
13. Abrasion on the left side back of chest, at the level of T10, just left to the midline, measuring 4 cm x 1 cm, red in colour.
14. Abrasion on the front of right knee, just below the patella, measuring 3 cm x 1.5 cm in size, red in colour.
Internal Appearances:
Scalp :Sub-galeal haematoma on the parietal region in the midline, over an area 1 cm x 0.5 cm.
Skull :Intact Tongue & Larynx :Intact Neck Structures : The epiglottis and the muscles on the upper part of the neck is contused.
Tissues underneath the ligature mark are dry and pale.
Trachea & Bronchi :Trachea is congested and bronchi are normal.
Hyoid Bone :Intact Ribs & Cartilage :Intact Brain :Congested with diffuse sub- arachnoid haemorrhages present on both the cerebral hemispheres. On cut section petechial haemorrhages in the while matter present.
Brain weighs 1000 gms.
Heart :Congested and petechial haemorrhages present. Heart weighs 100 gms.
Lungs :Both the lungs are congested with sub-pleural petechial haemorrhages. On cut section exudes bloody fine froth. Weight of the right lung is 300 gms and left lung is 275 gms.
Diaphragm : Intact. Peritoneal Cavity : Intact.
Mesentery : Intact Stomach : Contained about 10 ml of brownish fluid. No specific smell perceived.
Intestines : Intact.
Liver : Congested and weighs 900 gms Spleen : Congested and weighs 25 gms. Kidneys : Both the kidneys are congested.
Weight of the right kidney is 50 gms and weight of the left kidney is 75 gms.
Bladder : Intact and empty.
Organ of generation: One each tubectomy ring present on both the fallopian tubes. Uterus measures 9 cm x 5.5 cms x 3 cm.
On cut section multiple ulterine fibroid present, sizes ranging from 0.8 cm x 0.5 cm to 0.5 cm x 0.3 cm."
He gave opinion that the death of the deceased was due to asphyxia resulting from manual and ligature strangulation. According to him, the other injuries found could have been caused by blunt force and those injuries were also antemortem injuries.
P.W.2 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.3 is the brother's son of the deceased. He has stated that on 1.2.2015, at 9.00 a.m, the deceased had developed quarrel with his aunt, who was a neighbour. The accused at that time came there and tried to persuade her to stop fighting. But the deceased did not stop and continued to shout. At that time, P.W.2 also came there. He also tried to persuade the deceased from fighting. But the deceased without stopping quarrelling, went inside the house and brought her belongings, thereby indicating that she wanted to go away from P.W.1. Thereafter, the accused took the said materials and put them inside the house. Thereafter, according to P.W.3, some quarrel was going on between the accused and the deceased inside the house, which he did not notice. After some time, the deceased bolted the house from inside. The accused was found outside the house. He knocked at the door to open. Along with P.W.2, he opened the door by force. Inside the house, the deceased was found dead. P.W.3 was informed by P.W.2 that the deceased had committed suicide. P.W.4 has also stated about the said quarrel and has spoken about the same facts, as spoken by P.W.3. P.Ws.5 to 16 have turned hostile and they have not stated anything against the accused. P.W.17 has spoken about the preparation of observation mahazar and a rough sketch at the place of occurrence, by P.W.25. P.W.18 has stated that he was examined by the police during inquest. He participated in the inquest proceedings. Ex.P.26 is the inquest report. P.W.19 has spoken about the confession allegedly given by the accused to the police and the consequential recovery of ‘hacksaw blade’ and a ‘thali thread’ from the possession of the accused. P.W.20, a Constable, has stated that he helped the investigating officer in recording the statements of witnesses. P.W.21 has also stated that he recorded the statements of some more witnesses, as requested by the investigating officer. P.W.22 has spoken about the photographs taken at the place of occurrence of the dead body. P.W.23, the then Judicial Magistrate, has spoken about the statements of witnesses recorded under Section 161 Cr.P.C. P.W.24 has spoken about the registration of the case and the initial investigation done.
P.W.25 has spoken about the investigation done and the final report filed.
3. When the accused was questioned under Section 313 Cr.P.C. in respect of the above evidences, he denied the same as false. However, he did not choose to examine any witness nor mark any document. His defence was a total denial.
4. Having considered all the above, the trial Court convicted the accused, as detailed in the first paragraph of this judgement and that is how the accused is before this Court.
5. We have heard the learned counsel for the appellant and also the learned Additional Public Prosecutor appearing for the State and we have also meticulously gone through the entire judgment of the trial Court.
6. As we have already pointed out, there is no eyewitness to the occurrence and most of the witnesses have turned hostile and there is no incriminating evidence against the accused at all. The trial Court has relied mainly on the evidence of P.W.1, the Doctor, who conducted autopsy. He has opined that the death of the deceased was due to manual as well as ligature strangulation. Assuming that the said opinion could be accepted, the prosecution has to further prove that it was this accused, who strangulated the deceased manually and also by using a ligature. According to the charge, the accused strangulated the deceased with his hands and then strangulated her with the ‘thali thread’. Absolutely there is no evidence to prove this fact. The trial Court has relied on the signed statement made by P.W.1. Though it was opposed at the earlier point of time by the learned counsel for the accused that the same is inadmissible in evidence in view of the bar contained under Section 161 Cr.P.C., the trial Court has made reliance on the same as if it were admissible in evidence.
7. It is needless to point out that any statement given by a witness before the investigating officer whether signed or unsigned, is inadmissible in evidence in view of the bar contained in Section 161(2) of Cr.P.C. But unfortunately, the trial Court has admitted Ex.P.2, the statement of P.W.1, as substantive evidence and it has made reliance also. In view of the said legal bar, we eschew Ex.P2 from consideration at all. Nowhere P.W.1 has stated that the death was either independently due to ligature strangulation or manual strangulation. Both would not have caused the death of the deceased together. Had she died due to manual strangulation, then the ligature strangulation would have been only a post-mortem. Similarly, had she died due to ligature strangulation, manual strangulation made subsequently should be only a post-mortem strangulation. At any rate, it is not possible that the deceased would have died both due to manual strangulation and the ligature strangulation.
8. It is common knowledge that immediately after manual strangulation if death occurs and if ligature strangulation is made subsequently in the same transaction, the ligature mark would make an appearance as if it were ante-mortem, because the cells on the neck would not have died immediately after the arrest of the functioning of the heart. Thus, we find that the opinion of the Doctor that the death was due to manual strangulation as well as due to ligature strangulation is difficult to be accepted. The death due to hanging by means of ligature cannot be ruled out at all.
9. Now, in order to speak about the occurrence, the prosecution relies on the evidence of P.Ws.3 and 4. They have stated about the quarrel that the deceased had with the neighbour. The accused came and persuaded her not to quarrel with the neighbour. After that, according to these witnesses, the deceased had gone inside the house and bolted the same from inside. There is no evidence that the accused would have gone inside the house through some other way and strangulated and killed her. It is not as though the accused alone was there at the time of occurrence persuading the deceased not to quarrel. P.W.2, the yet another son of the deceased, was also there and he was also engaged in convincing the deceased not to quarrel. Thus, it cannot be presumed that this accused would have caused the death of the deceased.
10. In a case of circumstantial evidence, it is absolutely necessary for the prosecution to prove the circumstance beyond reasonable doubts and all such proved circumstances should form a complete chain without any break, pointing unerringly to the guilt of the accused and there should not be any other hypothesis, which would be inconsistent with the guilt of the accused. In this case, there is no such circumstance which would clinghingly and conclusively go to prove that the accused strangulated the deceased both manually and also with ligature and caused her death. But unfortunately, the trial Court has made extensive reference to Ex.P26, the inquest report, as though Ex.P26 is a substantive evidence.
11. It is needless to point out that inquest report can never take the form of substantive evidence and the same cannot be the foundation for conviction. A perusal of the judgment of the trial Court would go to show that the trial Court has not at all referred to any circumstance which would tend to conclusively prove that it was this accused who caused the death of the deceased. Absolutely there is no finding in this regard.
12. The trial Court has referred to some judgments of the Hon'ble Supreme Court and has found that the theory of suicide, as propounded by the accused, cannot be true and therefore, it should be concluded that the accused caused the death of the deceased. Assuming that the theory of suicide is not correct, that by itself would not go to prove or give rise to a presumption that it was this accused, who caused the death of the deceased. Thus, in our considered view absolutely there is no evidence to convict the accused in this case.
13. Article 21 of the Constitution of India, which guarantees a fundamental right, mandates that the life and liberty of an individual could be deprived of only by following the procedure established by law. It has been stated that the procedure as enshrined in Article 21 of the Constitution of India, includes a fair trial to the accused. Fair trial denotes proof beyond reasonable doubt of the guilt of the accused. The Court cannot afford to convict an accused either on mere surmise or suspecion. Suspecion however strong it may be, cannot take the place of proof. In this case, at the most, it could be stated that the prosecution has only made out a suspecion against the accused. That suspecion cannot take the place of proof. Therefore, we are inclined to acquit the accused by setting aside the judgment of the trial Court.
14. In paragraph No.66 of the judgement, the trial Court has recorded its appreciation to P.W.1, P.W.24 and also to the learned Public Prosecutor, who conducted the case before the trial Court. These three would not deserve any appreciation for the work done by them. Therefore, the apprecaition recorded by the trial Court are withdrawn and this appreciation shall not enure in favour of these three for any purpose.
15. In the result, this criminal appeal is allowed; the conviction and sentence imposed on the appellant by the trial Court are set aside and the appellant/accused is acquitted. Fine amount, if any paid by him is ordered to be refunded forthwith. Connected miscellaneous petition is closed.
msk (S.N.J.) (N.A.N.J.) 12 January 2017 Index:Yes/No Internet:Yes/No To
1. The Inspector of Police, Thirukkanur Police Station, Puducherry
2. The III Additional District and Sessions Judge, (FAC/Principal Sessions Judge) Puducherry
3. The Public Prosecutor, High Court, Madras S.NAGAMUTHU,J.
and N.AUTHINATHAN,J.
msk Crl.A.No.733 of 2016 12.01.2017 http://www.judis.nic.in