Moorthy v. Inspector Of Police
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 06.07.2016
CORAM
THE HONOURABLE MR. JUSTICE S. NAGAMUTHU AND THE HONOURABLE MR. JUSTICE V. BHARATHIDASAN CRL.A.No326/2015 Moorthy ..
Appellant/Sole Accused
Versus
The State represented by The Inspector of Police B-1, North Beach Road Police Station Chennai.
..Respondent Appeal filed under section 372[4] Cr.P.C., against the order and judgment dated 15.07.2013 passed by the learned Mahalir Sessions Judge at Chennai in SC.No.86/2012.
For Appellant :
Mrs.Sudha Ramalingam For Respondent :
Mr.M.Maharaja Additional Public Prosecutor
JUDGMENT
[Judgment of the Court was delivered by S.NAGAMUTHU, J.,] The appellant is the sole accused in SC.No.86/2012 on the file of the learned Judge, Mahalir Sessions Court, Chennai. He stood charged for the offences u/s.341, 302, 506[ii] IPC. By judgment dated 15.07.2013, the Trial Court convicted him for the offence u/s.302 IPC alone and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for six months. The Trial Court acquitted him from the charge u/s.506[ii] and 341 IPC. Challenging the said conviction and sentence, the appellant is before this Court with these appeals. The case of the prosecution, in brief, is as follows:- [A] The deceased in this case was one Mrs.Sumathi. The accused is her husband. Few years prior to the occurrence, on account of some misunderstanding between them, the deceased
Sumathi, deserted her husband/the appellant herein and started living at Kannagi Nagar, along with her sons and daughters. The accused without stopping with that, used to go to the house of the deceased to quarrel with her in an attempt to persuade her to join. It is further stated that because of the above harassment, their daughter by name Deepa committed suicide. After that, the accused stopped visiting the house of the deceased. He was staying on the platform on Rajaji Salai at Kodambakkam and used to go for coolie work everyday. On auspicious days like Tuesdays and Fridays, the deceased used to go to Om Sakthi Ellaimuthumari Angalamman temple at Zafar Sarang street to sell flowers. She used to sit by the side of the road and used to sell flowers to the devotees.
On one occasion, the accused went to the said place and again developed quarrel with the deceased. The general public present there, separated them. [B] It is further alleged that on 14.01.2012, at about 17 30 hrs, the deceased was sitting near the temple, selling flowers. At that time, it is alleged that the accused came there with an iron rod in his hand and attacked the deceased indiscriminately and caused extensive injuries on her. She fell down in a pool of blood. The accused also intimidated the bystanders who witnessed the occurrence when they attempted to intervene and thereafter, he ran away from the scene of occurrence. By the people present there, she was taken to the Government Stanley Hospital, at Chennai. But, unfortunately, on her way, she passed away.
[C] It is further alleged that based on the oral complaint of P.W.1 who was doing poojas in the said temple regularly, the present case in Cr.No.52/2012 for the offences u/s.341, 302 and 506[i] IPC came to be registered by P.W.21, the then Inspector of Police on 14.01.2012 at 17 30 hrs. Ex.P.18 is the FIR. He forwarded the document, viz., the FIR [Ex.P.18] to the Court, which were received by the jurisdictional Magistrate at 21 30 hrs on the same day.
[D] Taking up the case for investigation, P.W.21 proceeded to the place of occurrence and prepared the Observation Mahazar [Ex.P.1] in the presence of P.W.9 and another and also prepared a Rough Sketch [Ex.P.19]. He summoned the services of P.W.15 [Head Constable] to take photographs in the scene of crime. M.O.4 series are the photographs. He recovered blood-stained thread [M.O.1] ; blood-stained mosaic tiles [M.O.2] ; and sample mosaic tiles [M.O.3] under the cover of Mahazar [Ex.P.2] in the presence of the same witnesses. Thereafter, he went to the Government Stanley Hospital and received the Accident Register [Ex.P.16] from P.W.20-Dr.Muthu Narayanan. Thereafter, he held inquest on the dead body of the deceased in the presence of the panchayatdars and witnesses on 14.01.2012 between 21.30 hrs and 00.30 hrs and prepared Ex.P.20-
Inquest Report. He also recovered M.Os.8 to 10 from the dead body of the deceased in the presence of the same witnesses under Form 95. He sent the body of the deceased for postmortem. [E] P.W.19, Dr.Selvakumar, the then Professor of Forensic Science Department attached to the Government Stanley Hospital, at the relevant point of time, conducted autopsy on the body of the deceased on 15.01.2012 at 11.15 hrs. He found the following injuries:- "External Injuries:-
1. Reddish brown abrasion 2.5cmx1cm seen over upper one third of left fore arm.
2. Obliquely placed laceration 4mcx1.5cmx0.5cm behind the left ear in the left temporal region.
3. Obliquely placed laceration 8cmx0.5cmx0.5cm seen over left temporo parietal region of scalp.
4. Obliquely placed laceration 7cmx0.5cmxbone deep over left tempero parietal region of the scalp 1 cm away from the previous injury.
5. Obliquely placed laceration 5cmx0.5cm1cmx0.5cm in the left parietal region of the scalp close to the left parietal eminence.
6. Obliquely placed laceration 5cmx0.5cmxbone deep in the left parietal region of scalp close to the mid line.
7. Irregular laceration 8cmx1.5cmxbone deep in the right parietal region of scalp.
8. Laceration 2.5cmx0.5cmx0.5cm over the outer aspect of right side of the fore head above the outer one third of right eyebrow.
9. On dissection of Head:-Dark red contusion 12cmx8cmx0.5cm sen over right fronto partietal region of scalp. Linear fissured fracture 12cm long seen extending from right frontal bone to right parietal eminence. Comminuted fracture seen in the left temporo parietal bone over an area of 6cmx4cm. Extensive sub dural haemorrhage seen over both parietal and temporal lobes of the brain. The film of sub arachnoid haemorrhage seen over both cerebral hemispheres of the brain.
Heart: Normal in size, chambers empty, valvesNAD coronaries-patent great vessels-NAD. Lungs: Both lung normal in size, C/S congested. Stomach:-110 gms of partly digested food particles with no specific odour mucosa-NAD.
Liver, Spleen and Kidneys:Normal in size. C/s.empty.
Pelvis & Hyoid Bone:-Intact."
Ex.P.15 is the Postmortem Certificate. He gave his final opinion that the deceased would appear to have died of head injuries.
[F] When the investigation was in progress, P.W.21, on 15.01.2012, at about 03.00 hrs., he arrested the accused near Mannady Pump Chetty Street. On such arrest, the accused gave a voluntary confession, [the admissible part of which is marked as Ex.P.21], in which, he disclosed the place where he had hidden the iron rod. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced M.O.5 - iron rod and the same was recovered under a Mahazar [Ex.P.22]. The accused also produced M.Os.6 and 7 [Blue colour jeans and blood-stained shirt], which were recovered under a Mahazar [Ex.P.23]. Then the accused was sent for judicial remand. On receipt of the Postmortem certificate and chemical analysis report and serology report and on completion of the investigation, P.W.21 laid the final report against the accused.
[G] Based on the above materials, the Trial Court framed charges against the accused 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 21 witnesses were examined, 25 documents and 10 material objects were also marked.
[H] Out of the said witnesses, P.Ws.1 to 8 who were examined to speak about the occurrence, have turned hostile and they have not stated anything against the accused. P.W.9 has spoken about the preparation of the Observation Mahazar and the Rough Sketch at the place of occurrence and the recovery of the M.Os.1 to 3. P.W.10 is the son of the deceased and he has spoken about the previous quarrels between the deceased and accused. He has further stated that on the day of occurrence, someone informed about the occurrence and immediately, he went to the place of occurrence and came to know that the deceased had been taken to the hospital. Thus, he has also not stated anything about the occurrence. P.W.11 is yet another son of the deceased. He has also stated that he heard about the occurrence. He has further stated about the previous quarrels
between the deceased and the accused. P.W.12, an official of TNEB has stated that there was electricity at the time and place of occurrence. P.Ws.13 and 14, who were examined to speak about the arrest of the accused and the consequential recovery of M.O.5 [iron rod], have turned hostile. P.W.15 has spoken about the photographs taken at the place of occurrence. P.W.16 has spoken about the chemical analysis conducted on the material objects and he has stated that there was human blood on all material objects including the iron rod. P.W.17 has spoken about the serology test conducted by him. P.W.18 has stated that in the visceral organs of the deceased, there was no poison or alcohol detected. P.W.19 has spoken about the postmortem conducted and his final opinion regarding the cause of death. P.W.
20 has stated that the deceased was brought to the Stanley Hospital on 14.01.2012 at 18.10 hrs. He found her dead. Therefore, he forwarded the body to the Mortuary and informed the police also about the same. P.W.21 has spoken about the investigation done by him and the filing of the final report. As we have already pointed out, absolutely there is no incriminating evidence against the accused. However, the Trial Court questioned the appellant/accused u/s.313 Cr.P.C., in respect of the evidences spoken by the above witnesses as narrated herein above. However, he did not chose to examine any witness nor mark any document on his side. Having considered all the above, the Trial Court convicted and sentenced the accused for the offence u/s.302 IPC.
Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
We have heard Mrs.Sudha Ramalingam, learned counsel for the appellant and Mr.M.Maharaja, learned Additional Public Prosecutor appearing for the State and we also perused the materials placed on record carefully.
The learned counsel for the appellant would submit that it is unfortunate that the Trial Court has convicted the appellant on mere surmise as there is no evidence at all against him. The learned Additional Public Prosecutor is not in a position to point out any incriminating evidence on record against the accused. On our part, we have meticulously gone through the entire records of the Trial Court, more particularly, the depositions of the witnesses. We do not find that there is any incriminating evidence against the accused. As we have already pointed out, all the witnesses who were examined to speak about the alleged occurrence, have turned hostile and they have not whispered anything against the accused. When that be so, it is quite surprising that the Trial Court has convicted the accused u/s.302 IPC The conviction of the accused, in our considered view, is based on mere surmise.
In this regard, we need to emphasis that under Article 21 of the Constitution of India, the life and liberty of an individual can be deprived of only by following the procedure established by law. The procedure enshrined under Article 21 of the Constitution of India includes fair trial, fair appreciation of evidence and just decision in the case. The law does not permit deprivation of liberty or life of an individual by convicting the accused solely on mere surmise or even suspicion. The suspicion, however strong it may be, cannot take the place of proof. The Courts of law are required to go by the incriminating evidence and not to reach any conclusion on mere surmise.
In the instant case, quite contrary to the above Constitutional mandate which has been guaranteed as a Fundamental Right and which is considered to be the heart and soul of the Constitution, the Trial Court has, in a callous manner, convicted the accused on mere surmise. The Judgment of the Trial Court, in convicting the accused in this case, thus, cannot be appreciated at all. We are only hopeful that the Trial Courts shall bear in mind, the above Constitutional mandate while deciding the alleged guilt of any individual and be fair to the accused, the victim and to the Society. In the instant case, we are forced to say that the conviction of the accused is illegal and unconstitutional. Therefore, we are inclined to set aside the same.
In the result, the criminal appeal is allowed and the conviction and sentence imposed on the appellant by the Trial Court in SC.No.86/2012 dated 15.07.2013 is set aside. He is acquitted of the charge levelled against him. It is reported that the appellant is in jail. Accordingly, he is directed to be set at liberty forthwith unless his detention is required in connection with any other case.
Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar AP To The Mahalir Sessions Judge, Mahalir Court, Chennai.
-Do- The Principal Sessions Judge, Chennai.
The VII Metropolitan Magistrate, George Town, Chennai.
-Do- Thro The Chief Metropolitan Magistrate, Egmore, Chennai.
The Superintendent, Central Prison, Puzhal, Chennai.
The District Collector, Chennai.
The Director General of Police, Mylapore, Chennai-4.
8.
The Inspector of Police B-1, North Beach Road Police Station Chennai.
The Public Prosecutor High Court, Madras.
+2cc to M/S.Sudha Ramalingam, Advocate Sr.38076 Crl.A.No.326/2015 ug[co] srg 27/07/2016