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2004 DIGILAW 158 (MAD)

Mani v. State by Circle Inspector of Police

2004-02-10

M.THANIKACHALAM, P.SHANMUGAM

body2004
Judgment :- M.Thanikachalam, J. The accused, who stands convicted in S.C.No.112 of 1995, for the offences under Sections 499, 302, 201 and 394 r/w 397 I.P.C., for various terms of imprisonment is the appellant. 2. The Inspector of Police, Thiruvidaimarudur, moved the court below, by filing a final report, against the accused/appellant, for appropriate punishment under Sections 449, 302, 201 and 394 r/w 397 I.P.C., alleging that on 8.3.1995, at about 1.00 a.m., the accused/appellant committed trespass into the house of one Muthachiammal, with an intention to commit murder, due to previous enmity, that after committing the trespass, he had murdered Muthachiammal and Vinod, by strangulating both, that in order to escape from the legal punishment, causing disturbance of evidence of offence, he had hanged the two bodies, as if they had committed suicide in the house, and that during the commission of the above offence, he had committed robbery also, thereby he is liable to be punished under the above said sections. 3. The learned District and Sessions Judge, Thanjavur, after going through the materials placed before him, prima facie satisfied, to proceed further against the accused, after framing the charges. Thus, after framing the charges under the above said sections, when the accused was questioned, he pleaded not guilty, repudiating the allegations against him also. 4. The prosecution had marched in 19 witnesses armed with 17 documents and 9 material objects. The appreciation of the above materials, while scanning, according to law brought to surface to the satisfaction of the learned trial judge, that all the charges framed against the accused are proved beyond all reasonable doubt. Thus concluding, the learned trial judge had convicted under sections 449, 302 (2 counts), 201 and 394 r/w 397 I.P.C. and sentenced to undergo R.I. for five years, life imprisonment of two counts, R.I for three years and five years R.I., respectively. This sentence preceded by conviction are under challenge before us. 5. The facts leading to conviction may be stated briefly as follows: (a) Tmt. Vimala @ Ambika, P.W.4 is the wife of one Pichaipillai, who had gone abroad for eking livelihood. In the house belongs to the family, situated at Kangeyampettai, Vellala Theru, P.W.4, her mother-in-law and her child aged four years viz., Vinod were living. The accused also belongs to the same village. Vimala @ Ambika, P.W.4 is the wife of one Pichaipillai, who had gone abroad for eking livelihood. In the house belongs to the family, situated at Kangeyampettai, Vellala Theru, P.W.4, her mother-in-law and her child aged four years viz., Vinod were living. The accused also belongs to the same village. (b) One year prior to 8.3.1995, there was some dispute between the accused and P.W.4's family, regarding the grazing of goat. P.W.4 reported the matter to P.W.12, who compromised the same. Even thereafter, the accused allowed the goat to graze in the field of the P.W.4 and when the dispute had arisen, it seems P.W.4 caused injuries to the goat, which aggravated the accused to threaten P.W.4, for which she preferred a complaint to the police, resulting the arrest of the accused and later on released on bail. Thus, there was a long standing animosity, as well as enmity between the accused and P.W.4's family. Because of this animosity, it seems, the accused had reported to P.W.6 and others that he will one day take revenge for the act done by P.W.4. (c) On 7.3.1995, P.W.4 left her house and went to the parents' village, in order to get money for agricultural operation. On that day, during night hours, i.e. 7/8/.3.1995, Muthachiammal and her grand son Vinod alone were in the house. The accused, who had the ill feelings and animosity against this family, trespassed into the house of P.W.4 and committed murder of Muthachiammal and Vinod by strangulating both. Then after removing M.Os.1 & 2 from the body of Vinod, in order to escape from the legal punishment, the accused hanged the bodies, as if they had committed suicide, and thereafter decamped from the scene of crime. (d) On 8.3.1995 at about 8.00 p.m., P.W.3-Subramanian, who had noticed the dead bodies in their house along with P.W.2, informed the same to the Village Administrative Officer, who had been examined as P.W.1. P.W.1 after verifying the incident, went to the police station and preferred the complaint Ex.P.1. (e) On receipt of Ex.P.1, P.W.16 registered a case under Section 174 Cr.P.C., for which the printed F.I.R. is submitted to the court concerned. On receipt of the copy of Ex.P.10, P.W.19, the Inspector of Police, inspected the premises, prepared observation mahazar, sketch, as well as examined the witnesses and recorded their statements. He had also conducted inquest, for which Ex.P.13 was prepared. On receipt of the copy of Ex.P.10, P.W.19, the Inspector of Police, inspected the premises, prepared observation mahazar, sketch, as well as examined the witnesses and recorded their statements. He had also conducted inquest, for which Ex.P.13 was prepared. To find out the real cause for the death, the two bodies were sent through P.W.18, for autopsy. (f) The doctor P.Ws.13 & 14, who had conducted autopsy were of the opinion that the deceased had not committed suicide, whereas they were done to death by strangulation, which are incorporated in Exs.P.7 & 8. After the opinion of the doctor, P.W.19 altered the case under Section 302 I.P.C. and continued the investigation. (g) In continuation of the investigation, P.W.19 examined the witnesses, recorded their statements, as well as arrested the accused also, who had previously gave extra-judicial confession to P.W.9, regarding his guilt. On the basis of the confession obtained by P.W.19 voluntarily, in the presence of P.Ws.7 & 8, the investigating officer had also recovered M.Os.1 & 2, which belonged to the deceased Vinod. The investigation, so conducted, revealed the fact that the accused had due to the previous enmity had committed murder of Muthachiammal and Vinod and in this view, a final report was filed, leading to trial and ending in conviction, which is impugned by the accused, before us. 6. Heard the learned counsel, Mr. N. Sankaravadivel, appearing for the appellant and the learned Addl. Public Prosecutor. 7. The learned counsel for the appellant submits that the prosecution had relied on, to prove the guilt of the accused, only the circumstantial evidence and the so called circumstantial evidence fails to encircle the accused within the penal provisions, however the trial Court accepting the so called circumstantial evidence, convicted the accused, which is against even the materials available on record. It is the further submission of the learned counsel for the appellant that the so called extra judicial confession said to have been given to P.W.9, is a myth, that the recovery of M.Os.1 & 2 is also false, since even as per the evidence available on record, the accused was taken into custody even before the date of arrest, that there is no evidence that M.Os.1 & 2 were worn by the deceased by name Vinod and that the evidence available on record are all artificial in nature, standing independently, not connecting each other, so as to form a chain, leading to the irresistible conclusion, that the accused alone should have committed the murder, due to previous enmity and that there is no possibility, even to doubt about the involvement of three persons. In this view, he prayed for the benefits of doubt, thereby urged for an acquittal. 8. Per contra, the learned Additional Public Prosecutor, while opposing the above arguments, would submit that there are unquestionable circumstantial evidence, such as motive, extra judicial confession and recovery, which are sufficient to rope in the accused, to bring home the guilt of the accused, under the sections charged. It is the further submission of the learned Additional Public Prosecutor that the trial Court elaborately discussing the evidence available on record, had reached the irresistible legal destination, correctly, which does not warrant any interference by this Court, thereby prayed for the confirmation of the same. 9. Tmt. Muthachiammal is the mother in law of P.W.4 and Vinod, aged about 4 years, who was in the blooming stage is the son of P.W.4. According to prosecution, on 8.3.1995, at about 1.00 a.m., both were done to death by strangulation, though it was made to appear, as if they had committed suicide. Prior to the date of death and time of the incident, both were seen together alive by P.W.2 at about 8.30 p.m. on 7.3.1995, not in dispute. During the night hours i.e. 7/8.3.1995 alone, the death of the two, took place. Death of Vinod and Muthachiammal were noticed by P.Ws.2, & 3 on 8.3.1995 after 6.00 a.m., which was later on informed to P.W.1, the Village Administrative Officer. 10. On information by P.W.1, investigation commenced and in that process, the bodies of Muthachiammal and Vinod were sent for autopsy, which were done by P.Ws.13 & 14. Death of Vinod and Muthachiammal were noticed by P.Ws.2, & 3 on 8.3.1995 after 6.00 a.m., which was later on informed to P.W.1, the Village Administrative Officer. 10. On information by P.W.1, investigation commenced and in that process, the bodies of Muthachiammal and Vinod were sent for autopsy, which were done by P.Ws.13 & 14. As revealed by their oral evidence and as seen from Ex.P.7 and P.8, both had died of asphyxia, due to throttling of the neck. When the doctors have opined, on the basis of the autopsy, it is not the case of the defence that the deceased had committed suicide and it is not homicide. In fact, the doctors have not been cross examined and Exs.P.7 and P.8 have not been challenged. Under the above said circumstances, we find no difficulty in coming to the conclusion that Muthachiammal and Vinod met homicidal death. 11. It is the specific case of the prosecution, that due to the previous enmity, the accused had committed the murder of two. The admitted position is that there is no eyewitnesses. Only on the basis of the circumstantial evidence, the guilt of the accused is sought to be proved. The circumstances relied on by the prosecution, as submitted by the learned Additional Public Prosecutor are: (1) that there is a strong motive, for the accused to commit murder, (2) that the accused had given extra judicial confession before P.w.9, admitting the guilt, and (3) that the silver jewels viz., M.Os.1 & 2 belonging to P.W.4's family, worn by the deceased Vinod, were recovered on the basis of the confession given by the accused, for which there is no explanation from his side. 12. In a case of circumstantial evidence, the law is well laid down by the Apex Court, that all the circumstances relied on by the prosecution should have connection, thereby forming a chain, to draw an inference, excluding others involvement, indicating the accused alone as the only person, who should have committed murder. On the other hand, if some of the circumstances are proved and the said circumstances are not connected each other, with crime, then only on the basis of the proved circumstances alone, a conviction could not be sustained. The suspicion or the circumstances may be so strong to draw some inference that the accused might have involved in the commission of the offence. The suspicion or the circumstances may be so strong to draw some inference that the accused might have involved in the commission of the offence. But at the same time, if there is a possibility to draw an inference that involvement of others also would be possible, then that circumstance or the suspicion whatever may be its nature and solidity, that alone are not sufficient. In that case, according to criminal jurisprudence, the benefits of doubt should go to the accused, entitling him to an acquittal, unavoidably. 13. In a case of circumstantial evidence, motive plays a key role, no doubt. P.W.4 would state that there was a dispute between herself and the accused, regarding the grazing of goat, resulting subsequent dispute also. P.W.4 would admit that when she complained about the grazing of goat, by the accused, she injured the goat resulting, imposing of fine of Rs.500/-. It is the further case of P.W.4 that even thereafter, the goats belonging to the accused, grazed in the field of P.W.4, when questioned it seems, the brother of the accused threatened to assault her for which, a complaint was given. This is also spoken by P.W.15, supported by Ex.P.9. In that case viz., Cr.No.191/91, as evidenced by Ex.P.9, the accused is not a party, whereas his brother alone is a party. Therefore, the arrest of the brother of the accused and his release thereafter, cannot be a sufficient motive, for this accused to commit the murder of P.W.4's mother-in-law, as well as her own child. Thus, it is seen though there is a motive, in the sense, strong ill-feeling, between the accused family and P.W.4's family, in our considered opinion, it would not be the sole ground for the commission of the offence. If other attending circumstances are proved, probably then alone, this motive may lend some support and only on the basis of this motive alone, an inference could not be drawn, as if the accused should have committed the murder of Muthachiammal and Vinod. Assuming this may be the motive, if it is connected with other events, then alone, it will take the evidentiary value, warranting conviction, not otherwise. 14. An extra judicial confession, though it could be accepted and acted, it requires corroborative evidence. Otherwise, relying upon the extra judicial confession alone would be unsafe. Assuming this may be the motive, if it is connected with other events, then alone, it will take the evidentiary value, warranting conviction, not otherwise. 14. An extra judicial confession, though it could be accepted and acted, it requires corroborative evidence. Otherwise, relying upon the extra judicial confession alone would be unsafe. In this case, according to the prosecution, the accused confessed the guilt before P.W.9. P.W.9 had married the sister of P.W.4 and in this way, he is related, undoubtedly interested. P.W.9 is living in a village called Poongodi, which is 20 or 21 kms away from the village of the accused. It is not the case of the prosecution that P.W.9 and the accused were thick friends or P.W.9 acted as trusted man for the accused. Under the above circumstances, it is doubtful, whether the accused could have confessed his guilt before P.W.9. In our considered opinion, the extra judicial confession is sought to be introduced by the prosecution, having failed in their attempt, to get other evidence, connecting the accused, which could be seen further even from the oral evidence of P.W.4 and the unnaturalness available in the evidence of P.W.9. It is the case of the prosecution that due to previous enmity, the accused committed murder, that too probably pre-planned. If this is the position, it is not known, where is the necessity for the accused, to go to Poongodi Village 20 kms away from his place and confess before a man, who is related to P.W.4. Therefore, the case spoken by P.W.9 that when he was in a tea shop, he met the accused and the accused confessed that he had strangulated and committed the murder of Muthachiammal and her grandson, appears to be a myth, emanated from the fertile imagination of the investigating agency, to be introduced through P.W.9. If the above evidence is true, then it should fit in with the probabilities also. It is not the case of P.W.9 that he informed the same, forthwith to the police. P.W.9, being the relative of P.W.4 immediately ought to have reported the matter to the police or at least to P.W.4, regarding the confession made by the accused, since it is not his case that the accused threatened not to reveal to anybody. It is not the case of P.W.9 that he informed the same, forthwith to the police. P.W.9, being the relative of P.W.4 immediately ought to have reported the matter to the police or at least to P.W.4, regarding the confession made by the accused, since it is not his case that the accused threatened not to reveal to anybody. Curiously, during the cross examination, he would state that on 13.3.1995, he went to the police station, in order to verify, whether the accused surrendered himself before the police station, as advised by him. Here also, it is not the case of P.W.9 that he informed the police about the confession made by the accused. But the investigating officer would state strangely that on 13.3.1995 at about 9.00 p.m., he examined P.W.9 and Chandrasekar about the accused. Here also, it is not the case of P.W.19 that P.W.9 had reported to him about the confession received by him from the accused. 15. The false evidence given by P.W.9 and P.W.19 is exposed by P.W.4. P.W.4 would admit during the cross examination that when the bodies were in the house, the Inspector have enquired about the suspected accused, for which she said the suspected person is the accused by name Mani. It is the assertion of P.W.4 that the police brought accused on the same day and immediately took him to the police station also. Thus, it is seen the accused was taken into custody, whether legally or otherwise on 8.3.1995 itself. Therefore, the confession of P.W.9 that the accused had given confession to him must be an unadulterated lie, instructed to state so, by the investigating officer, which failed to inspire our consciousness. In this view, the extra judicial goes, as rightly submitted by the learned counsel for the appellant, thereby snapping one of the circumstances. 16. The main thrust of the prosecution is that they had recovered M.Os.1 & 2 from the accused, which belonged to the deceased Vinod. The specific defence taken by the accused is that M.Os.1 & 2 do not belong to P.W.4 or her son and these items were planted, only to connect this accused as if he had committed murder, as well as robbery, which was unfortunately accepted by the trial Court. We find much force in this contention, considering the materials available on record, which cut the root of the case itself. We find much force in this contention, considering the materials available on record, which cut the root of the case itself. None of the witnesses examined on behalf of the prosecution had stated at the first instance, that the deceased Vinod was wearing M.Os.1 & 2. Even P.W.4 had not reported even at later point of time that M.Os.1 & 2 were missing from her house or they were worn by the deceased Vinod. She would state, though her son used to wear the silver waist cord and anklet, it is not her case that on the date of the incident, he was wearing those articles and were found missing. True, a mother, who had seen the dead body of his son, would not have observed generally about the apparels of the deceased and if at all later on alone, should have recollected. In this way, for not reporting immediately about the missing of M.Os.1 & 2, we could not find fault, if it is otherwise proved. 17. P.W.19 has stated that he had arrested the accused on 24.3.1995 at about 9.00 a.m. at Kuttralam Bus Stand in the presence of P.Ws.10 and 11. According to P.W.19, Ex.P.16 is the confession statement given by him and on that basis, M.Os.1 & 2 were recovered along with M.O.9 under Ex.P.17. P.Ws.10 and 11 completely disowned the case of P.W.19 and in fact, though they have admitted the signature, exposed the falsity of the prosecution. Thus, the arrest and recovery spoken by P.Ws.19 is proved to be false. We are not here to say, that the investigating agency's evidence should be totally ignored. When the mahazar witnesses have turned hostile, the evidence given by doctors alone could be relied on, provided it takes the place of trustworthiness. 18. The investigating Officer, who has not even inspected the scene of crime properly, in our considered opinion, has not spoken the truth, regarding the arrest and recovery and that is why, P.Ws.10 & 11 have not supported the case, which could be seen from the oral evidence of P.W.4 also. As aforementioned, it is the specific case of P.W.4 that the accused was taken into custody on the same date i.e. on 8.3.1995. It is not the case of the investigating officer that though the accused was taken into custody on suspicion, later on released, arrested and recovery were made. As aforementioned, it is the specific case of P.W.4 that the accused was taken into custody on the same date i.e. on 8.3.1995. It is not the case of the investigating officer that though the accused was taken into custody on suspicion, later on released, arrested and recovery were made. It is also not the case of the prosecution, when P.W.1 had stated that the accused was taken into custody by the police, by way of reexamination, that by slip of tongue also P.W.4 would have stated so. Looking this case from this angle also, the arrest said to have been committed by P.W.19 on 24.3.1995 is proved to be false. According to P.W.9, the accused was available with him, gave confession statement on 10.3.1995 and he went to the police, for verification on 13.3.1995. At least at that stage, P.W.19 would have acted swiftly to apprehend the accused, since the accused was roaming in and around and since there is no evidence that he left the village and absconded. Therefore, we are unable to accept the arrest as well as the recovery, which should follow, no duty is cast upon the accused, to explain the possession of M.Os.1 & 2, which are said to be belonging to P.W.4's family. In this view, another circumstances relied on by the prosecution also falls to the ground, thereby making another crack and snap in the circumstances or chain of events. Thus, all the circumstances relied on by the learned Additional Public Prosecutor, are not proved, beyond reasonable doubt and we could say that the above two circumstances are proved to be false. Therefore, convicting the accused, as did by the trial Court appears to be beyond the scope of law. 19. The learned counsel for the appellant relied on a decision in Thankayyan v. State of Kerala (1994 SCC (Cri) 1751, in order to show, under what circumstances the circumstantial evidence is conclusive proof and under what circumstances, it is hazardous to convict the accused. In the case involved in the above decision, it seems, that on arrest of one of the accused, an ear-ring belonging to the deceased, was recovered from his possession and other circumstances relied on were not proved. In the case involved in the above decision, it seems, that on arrest of one of the accused, an ear-ring belonging to the deceased, was recovered from his possession and other circumstances relied on were not proved. Considering the facts and circumstances of the case, the Apex Court has ruled: "It is hazardous to convict an accused for offence under Section 302 on mere recovery under Section 27 of the Evidence Act." Here though recovery was alleged, it is proved to be false. Even assuming that recovery is true, as ruled by the Apex Court, sustaining the conviction is a remote one. 20. This is an unfortunate case and we could say it is an example, how a double murder case was not properly investigated and the accused was not brought to court to face the trial. We can pursue that during night hours, generally the inmates will lock the doors inside, while sleeping. In this way, Muthachiammal also ought to have locked the door or bolted the door inside. The position being so, if in anyone wanted to trespass or enter the house, then he should have broken open the door or in someway or other opened the bolt. The incident had taken place in a closed house. Therefore, the investigating officer, who had gone to the scene of crime, for the purpose of investigation, normally would have seen, whether the doors were broken, whether the bolts were in tact and how the culprit could have entered into the house and how he could have escaped, whether he had left any finger prints or any other materials, in a hurry to escape, after committing the murder etc. This investigating officer would state that he had not noticed, whether the front door as well as back door were bolted or not. He further submits that the finger print experts had inspected the premises, in order to find out the thumb impression. The result is not exposed for the reasons best known to the prosecution. Even he had not verified whether the bureau, which was inside the house, was locked or not. 21. The investigating officer should have approached the case, whether it is a murder for gain or for some other purpose. The result is not exposed for the reasons best known to the prosecution. Even he had not verified whether the bureau, which was inside the house, was locked or not. 21. The investigating officer should have approached the case, whether it is a murder for gain or for some other purpose. If it is a case of murder for gain, then he ought to have verified immediately, about the availability of the valuables, whether the bureau was broken open or in tact, etc. and should have examined the inmates forthwith, about the missing of any jewels, cash etc. This investigating officer did nothing, as seen from the cross examination, except preparing Exs.1 & 2 and preparing an extra judicial confession, as if the accused had gone to P.W.9. Only because of the laches committed by the investigating officer and his slackness in a double murder case, with heavy heart, we are inclined to give the benefits of doubt to the accused, since the materials available on record, is not sufficient and no conviction could be slapped upon surmise and conjecture and suspicion, however so strong it may be. The trial Court, in our opinion, had committed an error, in convicting the accused, only on the basis of the alleged motive and recovery, forgetting the fact that the recovery is proved to be false, even by the prosecution witnesses. In this view, we are unable to confirm the findings of the trial Court and we are constrained to set aside the same, for the above assigned reasons, thereby allowing the appeal. In the result, the appeal is allowed, setting aside the conviction and sentence slapped by the trial Court in S.C.No.112/1995 by judgment dated 14.12.1995, on the file of the Court of Sessions, Division of Thanjavur, further concluding that the prosecution has not proved the guilt of the accused, beyond all reasonable doubt, thereby acquitting the accused from the charges. The bail bond and sureties shall stand cancelled.