IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 05.01.2017 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE N. AUTHINATHAN CRL.A.No.571 of 2016 sentence passed in S.C.No.107 of 2013 dated 12.05.2014 on the file of Mahila Sessions (Fast Track) Court, Erode.
For Appellant : Mr.N. Manokaran For Respondent : Mr.P. Govindarajan Additional Public Prosecutor JUDGMENT [Judgment of the court was delivered by S.NAGAMUTHU, J.] The appellant is the First Accused in S.C.No.107 of 2013 on the file of the Mahila Sessions Court (Fast Track) Court, Erode. There was yet another accused by name Sathiskumar, who was arrayed as A.2 They stood charged for the offences under Sections 302 r/w 34, 392 and 201 IPC. By judgment dated 12.05.2014, the trial court convicted both the accused under all the charges and sentenced them as detailed below:
Challenging the said conviction and sentence, A.2 Sathiskumar filed an appeal in Crl.Appeal No,311 of 2014. A Division Bench of this Court by Judgment dated 03.06.2016 acquitted him. The appellant/A.1 has now come up with this appeal.
2. The case of the prosecution in brief, is as follows:-
(a) The deceased in this case was one Ms. Kavitha. She was a female Sex worker. She hailed from Tiruchirappalli District. P.W.7 was a resident of Karur. He was acting as a Pimp to arrange sex workers for his clients. It is alleged that on 29.05.2012 these two accused spoke to him over phone, requesting him to arrange for a sex worker. P.W.7 agreed for the same and fixed a remuneration of Rs.1,300/-. On the same day evening P.W.7 instructed the deceased Ms.Kavitha to leave Karur and to go to these two accused to provide sex to them.
(b) It is alleged that she went to Kutlamparai, where she had sex with these two accused. At the end of the affair, it is alleged that these two accused developed a desire to rob the gold chain and other belongings of the deceased. Thus, they strangulated the deceased with her saree and removed her gold chain and the other belongings. Then, they took the dead body of the deceased to Perumparapu Graveyard and threw the dead body into a pond. The accused fled away from the scene of occurrence. It is alleged that the occurrence was not witnessed by anyone. Neither P.W.7 nor any of the relatives of the deceased made a complaint to police.
(c) On 01.06.2012 a dead body of a female was found floating in the pond near Perumparapu Graveyeard. The Village Assistant of the village noticed the same and informed the Village Administrative Officer (P.W.1).
P.W.1 visited the scene of occurrence, found the dead body of a woman and then rushed to Kodumudi Police Station and made a complaint (Ex.P.1). PW.13, the then Head Constable of Kodumudi Police Station registered a case in Cr.No.197 of 2012 under Section 174 of Criminal Procedure Code (drowning). Ex.P.16 is the first information report. He forwarded Ex.P.1 and Ex.P.16 to the Court.
(d) P.W.14 the then Inspector of Police took up the case for investigation. He went to the place of occurrence, prepared an observation Mahazar and a Rough Sketch in the presence of witnesses after removing the body of the deceased from the pond. He conducted Inquest on the body of the deceased and forwarded the same for Post Mortem.
(e) P.W.11 Dr. Deepa conducted autopsy on the body of the deceased on 01.06.2012 at 12.40 p.m. Since the body was highly decomposed, even the identity of the deceased could not be made out. She found the following:
“ Body of a moderately built female laying .... with the arms by the side of the body and lower limbs extended. Body symmetrical, emitting foul smelling odour..., body bloated due to accumulation of putra facture gases in the tissues. Skin pealed out over the entire body. Hair on scalp – 1 feet in length, black in colour, could be easily pluched off. Eyelids-swollen eye balls protruding.
Nose-Normal. Mounth-Open. Tongue-greenish black in colour, protruding out of the mouth. Ears external genitalia-normal. Breast on both sides- normal.
External Injuries-No External Injuries. Internal Examination Thorax:Ribs no fracture.
Heart-soft flabby, chambers empty-120 gms in wt. Lung – bluish black in colour. Left lung 250 gms in wt. Right lung-275 gms. Hyoid Bone-intact. Abdomen:distended c Gas on opening foul smelling putufled gas escaping. Stomach-distened c gas contains partially digested food particles 75 gms in weight, mucosa – liquefled. Intestines – distended c gas contains partially digested food particles. Liver – 100 gms in wt, flabby, dark brownish red in colour, spleen – 80 gmsin wt flabby, soft dark brownish red in colour, kidneys – Rt kid – 90 gms lt kid 90 gms – dark brownish red in colour. Bladder – 150 ml of clear urine, uterus – Normal in size. Head scalp- normal, Vault intact, membranes intact, brain 900cms in weight, liquefled base of skull intact.”
Ex.P.13 is the Post Mortem Certificate. She forwarded the visceral organs for chemical examination. Ex.P.12 is the report which revealed that there was neither poison nor alcohol in the organs. P.W.11 finally opined that the death due to drowning could not be ruled out.
(f) P.W.14 collected the clothes from the dead body of the deceased and forwarded the same to Court. He took photographs of the dead body of the deceased and made wide publicity in news papers in an attempt to identify the dead body. But, nobody came forward to identify the body. Therefore, he disposed of the body.
(g) P.W.15, thereafter, continued the investigation. On 10.12.2012, at about 1.00 p.m, P.W.15 was on a regular vehicle check up near Noyyal Check Post. P.W.10- the Village Administrative Officer and his Assistant were with him at that time. An Omni Van bearing Registration No.TN 33 AJ 4898 was passing through the said Check Post. P.W.15 intercepted the said vehicle, in which, there were two persons. A.1 was one among them, who disclosed his identity. One Mr.Manikandan was with him. During interrogation, it is alleged, A.1 confessed his involvement in the present crime to P.W.15 in the presence of witnesses and in that confession he disclosed the place where he had pledged a gold chain. In pursuance of the same, he took the police and the witnesses to the shop, from where, M.O.2 gold chain was recovered. Out of his confession, M.O.11- the ladies hand bag and other materials were also recovered (M.O.12 to M.O.27). Out of his disclosure statement, A.2 was arrested and on his disclosure statement, no fact whatsoever was discovered. On completing the investigation, P.W.15 laid charge sheet against both the accused.
3. Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of the Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 15 witnesses were examined and 23 documents and 27 material objects were also marked.
4. Out of the said witnesses, P.W.1 has stated that he found the dead body of the deceased floating in the pond on 01.06.2012 and made a complaint to the police. P.W.2 has spoken only on the basis of hearsay information and he has not stated anything incriminating the accused. P.Ws.3 and 4 have spoken about the Mahazars prepared in the place of occurrence. P.W.5 has stated that on 29.05.2012, at about 8.15 p.m, he found A.1 and A.2 in the occurrence village. P.W.6 has stated that he found both the accused with a woman at 9.00 p.m in the village, P.W.7 has stated that at the request made by the the appellant over phone to send a sex worker, he requested the deceased to go. Accordingly, the deceased went alone, but did not return. P.W.8 is a commercial sexual worker who was working under P.W.7. She identified the photograph of the dead body as that of the deceased. P.W.9, the Head Clerk of the Court has spoken about the forwarding of Material Objects for chemical examination. P.W.10 has spoken about the arrest of A.1 on 10.12.2012 and the confession made by him and also the recovery of Material Objects. P.W.12 is the Constable, who carried the dead body to hospital for post mortem. P.W.13 has spoken about the registration of the case on the complaint of P.W.1. P.Ws.14 and 15 have spoken about the investigation done and the final report filed.
5. When the above incriminating materials were put to the accused u/s.313 Cr.P.C., they denied the same as false. Their defence was a total denial. However, they did not choose to examine any witness nor marked any document on their side.
6. Having considered all the above, the Trial Court convicted both the accused as detailed in the first paragraph of the judgment. Aggrieved over the same the appellant/A.1 is before this Court with this appeal.
7. We have heard the learned Counsel for the appellant/A.1 and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
8. This is a case based on circumstantial evidence. It is the positive case of the prosecution that the dead body of the deceased was found floating in water near Perumparapu graveyard. The learned counsel for the appellant would submit that absolutely there is no evidence to identify the dead body. The learned counsel would further submit that there was no scientific examination such as super imposition or DNA test to establish the identity of the dead body. Even P.W.7 had no occasion to identify the dead body. Thus, the prosecution, in our considered view, has miserably failed to identify the dead body found in the pond near Perumparapu graveyard as that of the deceased.
9. Next, the prosecution has also failed to prove that the death of the person, whose dead body was found was homicidal. P.W.11, the Doctor, who conducted autopsy on the body of the deceased has opined that “ the death due to drowning could not be ruled out”. In a case of this nature, unless the cause of death is proved beyond reasonable doubt that it was homicidal, it is not possible to convict the accused. In this case, as we have already pointed out, the prosecution has failed to prove that the death of the person, whose dead body was found, was homicidal.
10. The prosecution next relies on the recovery of material objects on the disclosure statement made by the accused. According to the investigating Officer, from the disclosure statement made by the accused, M.O.2 and M.Os.11 to 27 were recovered. M.O.2 is a gold chain. It is the case of the prosecution that it belonged to the deceased, but, nobody has identified M.O.2, as the gold chain belonging to the deceased. Not even P.W.7 who had lastly seen the deceased had identified M.O.2. Similarly, M.Os.11 to 27 have not been identified either by P.W.7 or anybody else. Thus, there is no proof to establish that M.O.2 and M.Os.11 to 27 belonged to the deceased.
11. The prosecution next relies on the evidence of P.W.6 who had lastly seen the deceased in the company of the accused while going in a TVS Motorcycle. But this witness did not disclose the same to anybody. He came forward with a statement that too for the first time only after both the accused were arrested. Absolutely, there is no explanation for the silence maintained for a long time. Therefore, his evidence cannot be believed and the same deserves to be rejected by this Court.
12. Above all, P.W.7, who claims to be the Pimp, he had not made any complaint to the police at all. According to him, for few days, he was under the impression that the deceased would return after finishing her sex work and would have gone for sexual work elsewhere. Assuming that he was under the impression, he has not explained to the court as to why he did not make a complaint whatsoever at all. He did not even to go to identify the body of the deceased, Thus, it is doubtful as to whether PW.7 would have sent the deceased to the accused on 29.05.2012 and assuming that he sent the deceased to the accused, there is no evidence that the deceased really met the accused and she was in the company of the accused.
13. As discussed above, though the prosecution has attempted to prove the said circumstances against the accused, nothing has been proved beyond reasonable doubts and there is no complete chain of circumstances unerringly pointing to the guilt of the accused. Thus, the prosecution has failed to prove the case beyond reasonable doubt.
14. In the result,
(i) The appeal is allowed, the conviction and sentence imposed on the appellant by the learned Mahila Sessions (Fast Track Court) Judge, Erode in S.C.No.107 of 2013 dated 24.12.2014 are set aside and he is acquitted.
(ii) The fine amount, if any paid, shall be refunded to him.
(iii) Bail bond, if any, executed, shall stand cancelled.
(S.N.J.,) (N.A.N.J.,) 05-01-2017 Index : Yes Internet : Yes sr To
1. The Inspector of Police, D.Nagar Police Station, Puducherry
2. The Principal Sessions Judge, Puducherry.
3. The Public Prosecutor, High Court, Chennai
S.NAGAMUTHU,J.
and
N. AUTHINATHAN,J.,
sr Judgment in Crl.A.No.571/2016 05.01.2017 http://www.judis.nic.in