Saravanan v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Judgment Reserved on: 10.11.2016 Judgment Pronounced on: 30.11.2016

CORAM:

THE HONOURABLE Mr.JUSTICE S.NAGAMUTHU and THE HONOURABLE Mr.JUSTICE M.V.MURALIDHARAN CRL.A.(MD)Nos.93 of 2015 and 72 of 2016 Crl.A.(MD)No.93/2015:

1.Saravanan, S/olNagarathinam 2.Manivannan, S/o.Nagarathinam 3.Venkatesh @ Venkateshwaran, S/o.Thangavelu.

4.Saravanan, S/o.Ganesan ... Appellants/ Accused 1 to 4 Vs.

State, rep.by The Inspector of Police, Cantonment (Law & Order) Police Station, Thiruchirappalli District.

(Crime No.421/2013) ... Respondent/ Complainant PRAYER: Appeal filed under Section 374 of the Code of Criminal Procedure against the Judgment of conviction and sentence, dated 30.03.2015, made in S.C.No.45 of 2015 on the file of the learned Principal Sessions Judge, Tiruchirappalli Division, Tiruchirappalli.

Crl.A.(MD)No.72/2016:

State, rep.by The Public Prosecutor, High Court, Madras.

(Tiruchy Cantonment (Law & Order) Police Station Crime No.421/2013) ... Appellant/ Complainant vs.

1.Saravanan, S/olNagarathinam 2.Manivannan, S/o.Nagarathinam

3.Venkatesh @ Venkateshwaran, S/o.Thangavelu.

4.Saravanan, S/o.Ganesan 5.Sudha, W/o.Saravanan ... Respondents/ Accused 1 to 5 PRAYER: Appeal filed under Section 378 of the Code of Criminal Procedure against the Judgment of acquittal, of the respondents/Accused (A1 to A5) of the charges framed against them, made in S.C.No.45 of 2015 dated 30.03.2015, on the file of the learned Principal Sessions Judge, Tiruchirappalli Division, Tiruchirappalli.

For Appellants 1 & 2 : Mr.A.Raghunathan, in Crl.A.(MD)No.

Senior Counsel for 93/2015 & Mr.T.Senthil Kumar Respondents 1, 2 & 4 in Crl.A.(MD)No.72/2016 For Respondent in : Mr.C.Mayilvahana Rajendran, Crl.A.(MD)No.93/2015 Additional Public Prosecutor.

& Appellant in Crl.A.(MD)No.72/2016 For Appellant-3 in : Mr.M.Baskar Crl.A.(MD)No.93/2015 & Respondent-3 in Crl.A.(MD)No.72/2016 For Appellant-4 : Mr.P.Andi Raj in Crl.A.(MD)No.93/2015

JUDGMENT

The appellants in Crl.A.(MD)No.93 of 2015 are the accused 1 to 4 in S.C.No.54 of 2015 on the file of the learned Principal Sessions Judge, Tiruchirappalli District. There was yet another accused by name, Sudha, who was arrayed as Accused No.5 in the case. The trial court framed as many as five charges against all the five accused, as detailed below:

Accused Nos.

Charge U/s.

Accused Nos.1& 2 U/s.120-B IPC Accused Nos.1 to 4 U/s.364 IPC Accused Nos.1 to 4 U/s.302 IPC Accused Nos.1 to 4 U/s.201 IPC Accused No.5 U/s.201 IPC After trial, the trial court, by judgment dated 30.03.2015, convicted the appellants/accused 1 to 4 under Section 364 IPC and sentenced each of them to undergo rigorous imprisonment for a

period of five years and to pay a fine of Rs.1,000/- in default, to undergo rigorous imprisonment for a further period of one month. However, the trial court acquitted the appellants/accused 1 to 4 from all other charges and the accused No.5 from the charge under Section 201 IPC. Challenging their conviction and sentence imposed under Section 364 IPC, accused Nos.1 to 4 are before this Court with Crl.A.(MD)No.93 of 2015 and challenging the acquittal of the accused under various other charges, the State has come forward with Crl.A.(MD)No.72 of 2016.

2.The case of the prosecution, in brief, is as follows: (a)The accused 1 and 2 are brothers. The 5th accused Mrs.Sudha is their sister. The accused 3 and 4 are the friends of accused Nos.1 and 2. The 5th accused was married to one Saravanan. Out of the said wedlock, Accused No.5 has got two children, by name Ajithkumar and Satishkumar. During the year 2011, it came to light that her husband was suffering from AIDS disease. Thereafter, the 5th accused distanced herself from her husband and her husband was then living in Namakkal. The 5th accused was residing at Karumandapam South Street, Trichy City, along with her children. In due course of time, it is alleged, that the deceased in this case Mr.Muruganandam had developed illicit intimacy with the 5th accused. This was not to the liking of accused Nos.1 and

2. They objected to that and even reprimanded the deceased. But, the relationship did not come to an end. While so, in a television programme conducted by ''Z" T.V. (Tamil Channel), the 5th accused appeared and disclosed to the interviewer that she had a plan to divorce her husband and to remarry the deceased Muruganandam. This further infuriated the accused 1 and 2. This is stated to be the motive for the accused 1 and 2 against the deceased.

(b)On 30.04.2013, the children of the 5th accused had gone to Namakkal to see their father Saravanan. Thus, the 5th accused alone was at her house. During night time, the deceased came to the house of the 5th accused to meet her. He stayed with her, overnight. He gave his pant and shirt to the 5th accused for washing. Thus, the deceased remained only with an undergarment. Early in the morning around 6.00 a.m., on 01.05.2013, the accused 1 and 2, along with accused Nos.3 and 4, who are their friends, came in a car to the house of the 5th accused. The house was then bolted from inside. Accused 1 and 2 knocked at the doors and the 5th accused opened the door. She was in night dress. Accused 1 and 2 pulled-her out by holding her nighty. On hearing the commotion, the deceased, who was in undergarments, came near the entrance of the house.

The accused cut him with a knife, pushed him into the car and abducted him. It is the further allegation that near Senthattimedu Odai in Devadanappatti Range, Kodaikanal Forest Division, on the Periyakulam-Kodaikanal Road, in the hill station, the accused 1 to 4 killed the deceased, severed his head and threw the dead body and ran away from the scene of occurrence. The occurrence was not witnessed by anyone.

(c)According to the case of the prosecution, the 5th accused went to Cantonment Police Station at 7.30 a.m. on 01.05.2013 and made a complaint, marked as Ex.P-6. On receipt of the said complaint, P.W.16, the then Sub-Inspector of Police, registered a case in Crime No.421 of 2013 under Sections 324, 506

(2) and 363 IPC and prepared FIR, Ex.P-9. In the said complaint, the 5th accused alleged that three unknown persons came in a car, knocked at the doors and when she opened the doors, they pulled her out, entered into the house, attacked the deceased and then abducted him in the car. She further stated that she failed to notice the car number.

(d)P.W.21, the Inspector of Police, on receipt of copy of FIR, took up the case for investigation, on 01.05.2013. At 8.30 a.m., he visited the place from where the deceased was abducted, prepared an observation mahazar (Ex.P-7) and a rough sketch (Ex.P-13) in the presence of P.W.13 and another. On the same day, he examined Accused No.5 and some other witnesses and recorded their statements. He also examined some more witnesses on 02.05.2013 and 03.05.2013 and recorded their statements. But, no breakthrough could be made. He went in search of the accused 1 and 2 in suspicion. But they could not be found anywhere. (e)While so, accused 1 and 2 surrendered before court. On a request made by him, the learned Judicial Magistrate ordered for police custody of accused 1 and 2. Accordingly, on 10.05.2013, P.W.

21, took police custody of accused 1 and 2. While in police custody, in the presence of P.W.12 and P.W.8, Accused No.1 voluntarily gave a confession and P.W.21 recorded the same. Likewise, Accused No.2 also gave a voluntary confession statement, in the presence of same witnesses, and P.W.21 recorded the same. (The disclosure statements of accused 1 and 2 have not been proved in evidence). Based on their disclosure statement, on the same day, P.W.21, altered the case into under Sections 363, 302 and 201 IPC and sent alteration report, Ex.P-14, to the Court. In pursuance of the disclosure statements made, accused 1 and 2 took the police party and witnesses to Senthattimedu Odai on the Periyakulam-Kodaikanal Road and identified a place. On such identification, P.W.21 made an observation, prepared an observation mahazar (Ex.

P-11) and drew a rough sketch (Ex.P-15). He recovered M.O.6, bloodstained earth and M.O.7, sample earth, under Ex.P-12, Mahazar, in the presence of same witnesses. He sent those material objects to court under Ex.P-16, Form 95. In that place, a headless dead body of a male, in a highly decomposed condition, was found lying. An undergarment, a black colour thread on the right hand and a wrist watch on the left hand were found on the dead body. There was also cut injuries on the body. At a distance of 120 feet away from the trunk, a skull was found lying with no flesh. On the direction of P.W.21, P.W.16, the subinspector of police, conducted inquest on the trunk, in the presence of panchayatdars and prepared an inquest report, Ex.P-10. P.W.

21 conducted inquest on the skull, in the presence of panchayatdars, and prepared an inquest report, Ex.P-17.

keeping the trunk and the skull together, P.W.21 conducted an inquest, in the presence of panchayatdars and prepared an inquest report, Ex.P-18. He examined some more witnesses and recorded their statements. Thereafter, he gave a request to the Government Headquarters Hospital at Theni to conduct postmorterm on the dead body.

(f)At the request of P.W.21, Dr.Priya, Tutor in Forensic Medicine, Government Theni Medical College, Theni, arrived at the place where the dead body was found and conducted postmortem at 02.15 p.m. on 11.05.2013 on the spot itself. (Dr.Priya has not been examined as a prosecution witness). She found the following injuries.

"Headless trunk decapitated at the level of 4th cervical vertebra was seen. Postmortem peeling of the skin noted all over the trunk and lower limbs in patches. Chest and abdomen are slightly bloated. Maggots of 0.5cm seen crawling over entire body. Skull, facial bones with C1, C2, C3 cervical vertebrae adherent with decomposed scalp muscle, masses in patches found 25 meters from the decomposed decapitated trunk with semi solid mud found sticking on the face and head with multiple fracture on the skull vault and the empty skull cavity noted. On alignment of C3 cervical vertebrae recovered from head and cervical vertibrae 4 recovered from the trunk matches with each other and found to be on and the same individual.

The following ante-mortem injuries are noted over the body: 1)Headless trunk decapitated at the level of C4 cervical vertebrae level. The body of C4 cervical vertebrae, the surrounding muscles, vessels, nerves, tissues of food pipe and wind pipe, spinal cord found cut at that level. The margin of the wound is regular.

The, complexion and texture of the decapitated head and the headless trunk match with each other and the cut ends of the cervical vertebrae reciprocally fits with each other and appears to belong to one and the same individual. 2)Cut injury of size 6 cms x 4 cms x muscle depth seen over the left hand dorsal aspect.

3)Cut injury of size 3 cms x 1.5 cms x muscle depth seen over the left hand web space between the index and the ring finger.

4)Cut injury of size 10cms x 5cms x cavity deep seen over the back of left side chest.

5)Cut injury of size 8cms x 7cms x bone deep seen over the left wrist of the hand.

6)Cut injury of size 5 cms x 3cms x muscle deep seen over the right lower forearm.

7)Contusion of size 4cms x 3 cms seen over the

left dorsum hand.

8)Contusion of size 7cms x 5cms seen over the front of left side chest.

9)Contusion of size 6cms x 5cms seen over the front of right lower forearm.

10)Contusion of size 10cms x 6cms seen over the back of left side chest inner aspect.

11. On dissection of Scalp, Skull & Dura:

Scalp described. Fracture of length 6cms x 2 cms x through and through with surrounding bruise noted in the left fronto - parietal bone of the skull vault. Fracture of length 5cms x 2.5cms x through and through with the surrounding bruise noted in the right frontal bone of the skull vault. Fracture of length 11 cms x 4 cms x through and through with the surrounding bruise noted in the occipital bone of the skull vault, skull cavity empty."

Ex.P-19 is the postmortem certificate issued by Dr.Priya. She preserved skull bone for the purpose of superimposition and right femur bone and teeth were preserved for the purpose of chemical examination. Photograph of the deceased was used for superimposition and identity was established. Dr.Priya finally gave opinion that the deceased had died due to shock and haemorrhage due to decapitation type of head injury. (g)In pursuance of the disclosure statements made, accused 1 and 2 took the police party and the witnesses to a place near the 30th hairpin bend on the Periyakulam-Adukkam Road and produced a sword (M.O.1) and P.W.21 recovered the same under Ex.P2, Mahazar, attested by P.Ws.8 and 12. Then, the accused 1 and 2 took the police and witnesses to Chelumbur Bridge and produced bloodstained full hand shirt (M.O.

4), another full hand shirt (M.O.5) and the same were recovered by P.W.21 under Ex.P-1, attested by the same witnesses. P.W.21 sent M.O.4 and M.O.5 to the court under Ex.P-25, Form 95. Then the accused 1 and 2 took the police party and the witnesses to Coimbatore Corporation's Car Parking at Cross-cut Road and produced TATA Qualis Car, bearing Regn.No.TN-07 M 3033 (M.O.2) and the same was recovered by P.W.21 under Ex.P-3 Mahazar, attested by P.Ws.8 and 12, and forwarded the same to Court under Ex.P-24, Form 94. He also forwarded the accused 1 & 2 to court, for judicial remand.

(h)On 15.05.2013, accused 3 and 4 surrendered before Judicial Magistrate No.2, Trichy. P.W.21 took them into police custody. In the presence of P.W.11 and P.W.12, on enquiry, both the accused gave independent voluntary confession statements and P.W.21 recorded them. Pursuant to the disclosure statements, accused 3 and 4 took the police party and the witnesses to the place where the deceased was murdered and thereafter took the police party to the back side of Gandhi Park, near the Fort at Dindigul, and accused No.4 took and produced a bloodstained knife (M.O.3) and P.W.21 recovered the same under Ex.P-4, Mahazar, attested by P.Ws.11 and 12. P.W.21 forwarded M.O.3 to Court

under Ex.P-25, Form 95. He examined witnesses and recorded their statements. Then, he forwarded the accused to Court, for judicial remand. He gave Ex.P-26, requisition to the Court, for conducting superimposition test. He also gave Ex.P-30 requisition to the court for sending the material objects for chemical analysis. Based on the voluntary confession statements of accused 1 to 4, the 5th accused was arrayed as an accused. P.W.21 gave a requisition to the Court to examine accused No.5 and based on the statement given by her before the learned Magistrate, he altered the crime into under Sections 120-B, 364, 302 read with 201 IPC and forwarded the alteration report, Ex.P-37 to the Court. On completion of investigation, he filed charge sheet against all the accused.

3.Based on the above materials, the trial court framed charges, as detailed in the first paragraph of this judgment, against all the accused. The accused denied them as false. In order to prove the charges, the prosecution examined as many as 21 witnesses, exhibited 37 documents and marked 10 material objects. 4.Out of the said witnesses, P.Ws.2 to 7, 11, 12, 17, 18, 19 and 20 have turned hostile and they did not support the case of the prosecution, in any manner. P.W.1 has stated that he is a neighbour of the 5th accused. He has further stated that on 01.05.2013, around 6.00 a.m., the accused 1 and 2, along with two more persons, came in a Tata Qualis Car and abducted the deceased, from the house of the 5th accused. He has further admitted that prior to the occurrence, he had not seen any of these accused. P.W.

8, Village Administrative Officer, has spoken about the confession made by accused 1 and 2 and the discovery made out of their disclosure statement. P.W.9 has stated that the 5th accused was his neighbour and on the date of occurrence, around 6.00 a.m., when he was getting ready to go for morning walk from his house, a TATA Qualis Car, bearing Regn.No.TN-07 M 3033 came to the house of the 5th accused and from the car four persons got down and one was sitting in the car and they pushed the deceased into the car and abducted him. He has identified the accused 1 to 4 as the persons who took the deceased in the car. P.W.10 is yet another neighbour of the 5th accused. He has also stated the same facts. But, he has not identified the assailants. He has stated that he did know the accused 1 to 4 at all. P.W.

13 has spoken about the preparation of observation mahazar and rough sketch (place from where the deceased was alleged to have been abducted. P.W.14, the mother of the deceased, has stated about the iilicit intimacy between the deceased and the 5th accused. She has further stated that on 01.05.2013 at about 5.00 a.m., the 5th accused called her over phone and informed that the deceased was abducted in a car by the accused 1 to 3 and on 05.05.2013, according to her, the dead body was found and thereafter she identified the dead body. P.W.15 was the former employee of the deceased. He has stated that on 01.05.2013, around 6.30 a.

over phone and informed that the deceased was abducted by accused 1 to 3. P.W.16 has spoken about the registration of the case, on the complaint of the 5th accused. P.W.17, an official of the Forest Department, has stated that he found the dead body of the deceased and then he witnessed the preparation of observation mahazar, rough sketch and recovery mahazar (place where dead body was found). Since he did not speak relevant facts, he was treated as hostile. P.Ws.18, 19 and 20, other Forest Officials, have also turned hostile. P.W.21, Inspector of Police, has spoken about the investigation done by him and the charge sheet filed against all the accused.

5.When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, they denied the same as false. However, they did not choose to examine any witness nor mark any documents.

6.Having considered all the above, the trial court found appellants in Crl.A.(MD)No./accused 1 to 4 guilty under Section 364 IPC, convicted and sentenced them thereunder, but acquitted them from all other charges and further acquitted accused No.5 also from the lone charge under Section 201 IPC, as detailed in the first paragraph of this judgment. That is how, these appeals are before this Court for disposal.

7.We have heard the learned counsel for the appellants in Crl.A.(MD)No.93/2015 and the respondents 1 to 4 in Crl.A.(MD) No.72/2016 and the learned Additional Public Prosecutor, appearing for the appellant in Crl.A.(MD)No.72/2016 and the respondent/complaint in Crl.A.(MD)No.93/2016. We have also perused the records, carefully.

8.This is a case based on circumstantial evidence. At the outset, we should say that in a case of this nature, the prosecution should prove the circumstances projected by it beyond reasonable doubts and all such proved circumstances should form a complete chain so as to unerringly pointing to the guilt of the accused and there should not be any hypothesis which would be inconsistent with the guilt of the accused. Keeping this broad principle in our mind, let us now go into the circumstances projected by the prosecution.

9.According to the prosecution case, the deceased was lastly seen alive on 01.05.2013 around 6.00 a.m. (whether this fact has been established or not, we will discuss the same little later). The dead body of the deceased was found in the forest area, near Kodaikanal, on 11.05.2013. The dead body was in a highly decomposed condition. The skull was found at a distance of 125 ft. away from the trunk. The doctor, who conducted autopsy on the dead body, had found certain injuries also on the dead body. From these ante-mortem injuries and the fact that the head was

found severed, the Doctor had opined that the death of the deceased was a homicide. But, unfortunately, the doctor, who conducted post-mortem has not been examined. No reason whatsoever has been stated by the prosecution for the same. In the absence of the evidence of the doctor to speak about the post-mortem, the accused are deprived of their valuable right of cross-examination to establish the fact. Fair trial, as guaranteed under Article 21 of the Constitution of India mandates that every opportunity should be afforded to the accused to have an effective defence. In the instant case, to be fair on the part of the prosecution, the doctor, who conducted the post-mortem, ought to have been examined. It is not known as to why the said doctor has not been examined.

In the absence of the examination of the doctor, the post-mortem certificate containing the opinion of the doctor cannot be treated as substantive evidence. Therefore, we hold that the prosecution has failed to prove the injuries found on the body of the deceased and the cause of death. It is not even clear on record as to whether the head was severed when the deceased alive or the neck injury by which the head was severed was a post-mortem injury. The time of death also has not been clearly established by the prosecution. From these circumstances, we find that the lower court is right in acquitting the / appellants accused 1 to 4 from the charge under Section 302 IPC. 10.Now turning to the charge under Section 364 IPC, P.W.

1 has stated that he noticed a TATA Qualis Car in front of the house of the 5th accused and the accused 1 to 4 took the deceased in the car, by force. In the chief examination itself, he has stated that he did not know the accused 3 and 4 and then he identified only accused 1 and 2. During the cross-examination, he has stated that he had not seen the accused 1 and 2 also before the occurrence. According to him, he saw the accused 1 and 2 only at the time of occurrence, that too, for a few minutes. He has admitted that the names of these accused 1 to 4 were informed to him only by the police and based on the same, he gave evidence before the lower court. Unfortunately, there is no test identification parade held so as to test the veracity of P.W.1.

No explanation whatsoever was offered as to why no test identification parade was conducted. Therefore, we cannot give any weightage for the evidence of P.W.1.

11.The prosecution next relies on the evidence of P.Ws.9 and 10, who were the neighbours of the 5th accused. They have also stated that they found a TATA Qualis Car in front of the house of the 5th accused, in which the deceased was taken by force. So far as P.W.9 is concerned, he has stated that he knew all the five accused before the occurrence. But, during the cross examination, he has stated that he came to know about the names of those four persons who took the deceased from the house of the 5th accused only from the newspaper reports, later on. Further, he did not disclose the occurrence to anybody, even at the time when the

investigation was in progress, for few days. He informed the police only after several days. Had it been true that he witnessed such an event, he would have informed the police when the Inspector of Police (P.W.21) visited the place of occurrence (house of A-5) and examined all the neighbours. The silence of this witness for such a long time, without disclosing about the above vital event to P.W.21, creates doubt in his veracity. Above all, though, in a vague manner, he has stated that he knew accused 1 to 4 before the occurrence, since he has stated, during the cross examination, that he came to know about the names of these accused only from newspaper reports, it is difficult to believe that he knew the accused 1 to 4 before the occurrence. For him also, there was no test identification parade conducted.

Therefore, his evidence also deserves no weightage. So far as P.W.10 is concerned, he has not identified any of the accused during trial. He has stated that three persons came in the car and took the deceased. Thus, his evidence also would not go to establish that it was these accused Nos.1 to 4 who took the deceased in the car. Apart from that, absolutely there is no evidence to prove the charge against the accused. 12.

2. We are not persuaded by the said argument, because the said disclosure statement said to have been made by accused 1 and 2 disclosing where the dead body was lying, have not been proved in evidence at all for the reasons best known to the prosecution. Even P.W.21 has not stated anything about the said disclosure statement. The Forest Officials, who were examined as P.Ws.17 to 20, though turned hostile, have stated that during routine watch duty, they found the dead body and informed the same to the police. This would only falsify the case of the prosecution that the dead body was discovered only on the confession of accused 1 and 2. Further, in law, a joint disclosure statement is not admissible in evidence. In this case, no disclosure statement, either individual or joint, has been marked in evidence. Thus, this argument of the learned Additional Public Prosecutor also deserves to be dismissed.

13.In the ultimate analysis, we find that though it is a very sensational case, adequate attention has not been shown to investigate the case properly. Further, though it is a sensational case, the prosecution has failed to prove the charges beyond reasonable doubt, by letting any sufficient evidence. The trial has convicted accused 1 to 4 for the offence under Section 364 IPC, believing the evidence of P.Ws.1, 9 and 10. As we have already held that these three witnesses are not believable and hence appellants/accused 1 to 4 are entitled for acquittal from the charge under Section 364 IPC also.

14.The other charges are concerned, we find no evidence against the accused and the trial court is right in acquitting the accused in those charges and, therefore, the appeal filed by the State deserves to be dismissed.

15.In the result, (i)Crl.A.(MD)No.93 of 2015 is allowed and the conviction of the appellants/accused 1 to 4 under Section 364 IPC and the sentence imposed thereunder are set aside and they are acquitted of the said charge. They are directed to be released forthwith, unless their presence is required in connection with any other case. If they are on bail, bail bonds executed by them shall stand terminated. Fine amount, if any, paid by them shall be refunded, forthwith.

(ii)Crl.A.(MD)No.72 of 2016 is dismissed.

Sd/- Deputy Registrar /True Copy/ Sub Assistant Registrar To:

To 1.The Principal District and Sessions Judge, Tiruchirappalli Division, Tiruchirappalli.

2.The Judicial Magistrate No.II, Tiruchirappalli.

3.The Inspector of Police, Cantonment Law & Order Police Station, Tiruchirappalli.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 cc to MR.M.SANKAR, Advocate SR.No.74891, 74892 +1 cc to MR.T.SENTHIL KUMAR, Advocate Sr.No.74588 JUDGMENT IN CRL.A.(MD)Nos.93 of 2015 and 72 of 2016 Dated:30.11.2016 SMA/CK/SAR3/27.12.2016:11P/8C