Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 1395 (MAD)

Pandiyan v. State rep. by Inspector of Police

2009-04-24

R.BANUMATHI, RAJA ELANGO

body2009
Judgment R. BANUMATHI, J. 1. This appeal arises out of Judgment in S.C.201/2005 on the file of Principal Sessions Judge, Dharmapuri at Krishnagiri convicting the appellant/accused U/s.302 IPC and sentencing him to undergo life imprisonment and also imposing fine of Rs.5000/-. Appellant was acquitted of the charges U/s.4 of D.P Act and 498-A and 304(B) of IPC. 2. Case of prosecution in nutshell are as follows:- PW1-Velu is the father of deceased Vanitha @ Sangeetha. PW2-Jayanthi is her elder sister. PW4 [Iswarya] and PW5 [Vishnupriya] are the daughters of PW2. Deceased Vanitha was given in marriage to the accused about 1 ½ years prior to the occurrence. After marriage accused and deceased settled at Govinda Agraharam, Hosur just four houses away from the house of PW2. Accused was running a welding shop in Hosur. 3. On 212. 2003 between 1.30 p.m. to 2.30 p.m., when PW2 went to the house of deceased, she found her sister Vanitha in hanging position and her legs were found touching the ground. Thinking that deceased was alive immediately, PW2 called PW6-Pushpa for help. They had called for help of one Compounder who pressed her chest to ascertain whether she was alive. PW2 informed her husband [Anbalagan] and also to the accused over phone. After their arrival deceased was taken to a private clinic at Athipalli wherein the Doctor had declared that Vanitha had died on the way to hospital. 4. Dead body of deceased Vanitha was taken to the native place of accused. PW2 and her husband accompanied the dead body. On hearing news, PW1 went to the place of accused where the dead body was kept. Accused informed PW1 and his wife that deceased committed suicide by hanging. Since PW1 suspected death of his daughter, PW1 lodged complaint before Jolarpet PS whereby he was advised to go to Hosur PS. Subsequently, PW1 and others went to Hosur along with body of Vanitha and lodged Ex.P1-Complaint. On the basis of Ex.P1, case of suspicious death was registered in Cr.No.259/2003 U/s.174 of Cr.P.C. Since the death was within seven years from the date of marriage, Ex.P10- FIR was sent to PW10-Sub-Collector for Inquest. On receipt of FIR, PW10-Sub-Collector in the presence of Panchayatdars examined witnesses conducted inquest and Ex.P10 is the Inquest report. After inquest, body was sent for autopsy. 5. PW3-Dr. Navaneethan conducted autopsy on the dead body of deceased Vanitha (212. 2003). On receipt of FIR, PW10-Sub-Collector in the presence of Panchayatdars examined witnesses conducted inquest and Ex.P10 is the Inquest report. After inquest, body was sent for autopsy. 5. PW3-Dr. Navaneethan conducted autopsy on the dead body of deceased Vanitha (212. 2003). PW3 noted contusion in the lungs which was congested. Viscera was sent to chemical analysis and no poison was detected in viscera. In response to the questionnaire by Investigating Officer, PW3-Dr.Navaneethan had given his final opinion, opining that death was due to ante-mortem injuries to lungs and that it is possible due to mechanical violence caused in that part of body. Ex.P5 is the Post Mortem Certificate. 6. PW12-Deputy Superintendent of Police, Hosur, had taken up the case for investigation. He inspected the scene of occurrence prepared Ex.P8-Observation Mahazar and Ex.P13-Rough Plan. Cradle saree -(MO1) alleged to have been used by the deceased for hanging was seized. 7. After receipt of opinion from the Doctor, PW12-DSP came to the conclusion that death of deceased was not caused by hanging and therefore, he has altered section of law to 498-A, 304(B) IPC and 302 IPC under Ex.P15-Alteration Report [110. 2004]. On the same day, he arrested the accused and recorded confession statement. On completion of investigation, PW12 laid final report on 30.11.2004 U/s.498-A, 304(B) and 302 of IPC and U/s.4 of D.P. Act. 8. Charges were framed against accused U/s. 4 of D.P. Act, 498-A, 302 and 304(B) IPC. To substantiate the charges, prosecution has examined PWs.1 to 12. Exs.P1 to P14 and MO1 were marked. Accused was questioned U/s.313 Cr.P.C about the incriminating evidence and circumstances. Accused denied all of them and pleaded not guilty. Appellant had taken defence plea that the death was suicidal ad a false case is foisted against him. 9. Upon consideration of evidence and circumstances, learned Sessions Judge held that the conduct of accused in not accompanying the body and his father-in-law to Hosur PS is unnatural. Based upon the confession statement of the appellant and observing that confession statement of the appellant would amount to admission of fact, learned Sessions Judge held that the circumstances relied upon by the prosecution established the guilt of the accused beyond reasonable doubt and convicted the appellant U/s.302 IPC. Appellant/accused was acquitted for other charges. 10. Mr. Based upon the confession statement of the appellant and observing that confession statement of the appellant would amount to admission of fact, learned Sessions Judge held that the circumstances relied upon by the prosecution established the guilt of the accused beyond reasonable doubt and convicted the appellant U/s.302 IPC. Appellant/accused was acquitted for other charges. 10. Mr. S. Ashok Kumar, learned Senior Counsel for the appellant contended that without any evidence, trial court proceeding on the basis that appellant was responsible for causing the death of the deceased by homicidal violence. Placing reliance upon 1996 SCC (Crl) 1120 [P. Satyanarayana and another v. P. Mallaiah and others], learned counsel for the appellant submitted that mere admission by the appellant would not be enough to base the conviction. 11. Supporting the findings of trial court, Mr. P. Kumaresan, learned Public Prosecutor [i/c] submitted that husband and wife were residing in the same house and while so, it was for the appellant to explain the death of the deceased and in the absence of explanation inference of guilt to be drawn against him. It was further argued that accused had given false information that deceased died of suicide which was a strong circumstance against the appellant and based upon the evidence, learned Sessions Judge rightly convicted the accused U/s.302 IPC. 12. Case of prosecution hinges upon circumstantial evidence. To establish the guilt of the accused, prosecution had relied upon the following circumstances: "That deceased was last seen alive by PWs 4 and 5 (daughters of PW2) and that accused had lunch in the house on 212. 2003. "That deceased found dead inside the house. "Death was due to contusion found on the lungs and liver of the deceased and as per medical opinion death was due to mechanical violence. Confession statement by accused before the Investigating Officer. 13. It is settled law that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with their innocence. 14. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with their innocence. 14. In every case based upon circumstantial evidence and in this case as well, the question that needs to be determined whether all the links in the chair of circumstances is so complete pointing to the guilt of the accused to rule out possibility of innocence of accused. 15. Case of prosecution is that the accused was badly in need of money for his welding industry and he had frequently demanded money from his wife and since she was not able to meet out the requirements, she was subjected to cruelty and ultimately beaten to death. PWs1 and 2-father and sister of deceased are the witnesses who are to speak about the alleged demand of dowry and that deceased was subjected to cruelty. Both PWs 1 and 2 have not supported the prosecution case. During trial, both of them have stated that deceased was cordial with her husband and that there was no strained relationship between husband and wife. Absolutely, there was no evidence to substantiate demand of dowry and that death was dowry death. We are of the view that the appellant was rightly acquitted under the charges U/s.498-A & 304 (B) IPC. 16. Case of prosecution is that on the date of occurrence 212. 2003 appellant had beaten the deceased and kicked on her and thereafter hanged the body. Absolutely, there is no iota of evidence to show that accused had beaten the deceased. PWs.4 and 5 who are daughters of PW2 are to speak about the occurrence and that accused had beaten the deceased on the afternoon of 212. 2003. But PWs.4 and 5 have not supported the prosecution case and turned hostile. PW2-sister of deceased has not stated any incriminating fact against the accused. Evidence of PW2 is to the effect that she went to the house of deceased and saw the deceased hanging and thereafter informed her husband and the appellant about the incident over phone. As per the version of PW2, appellant came to the scene of occurrence and took the deceased along with PW2 and others to the hospital. 17. The other evidence viz. As per the version of PW2, appellant came to the scene of occurrence and took the deceased along with PW2 and others to the hospital. 17. The other evidence viz. that of PW6-Pushpa who is neighbour is of no help to the prosecution. According to PW6, on being called by PW2-sister of deceased, she went to the house of deceased and found the deceased hanging with saree tied around her neck. 18. PW1-father of the deceased had taken the dead body of Vanitha to Hosur PS and expressing suspicion over the death of deceased, PW1 lodged the complaint. Learned Sessions Judge found fault with the accused observing that accused had not accompanied the dead body to Hosur Police Station. Learned Sessions Judge, observed that such unnatural conduct of the appellant itself is an incriminating circumstance against the appellant and drew an adverse inference against accused. 19. In our considered view, learned Sessions Judge erred in drawing inference of guilt from the circumstance that appellant had not accompanied PW1 to Hosur Police Station. Learned Sessions Judge erred in ignoring the initial conduct of the accused. On being phoned up by PW2, appellant had gone to the house and taken the deceased to the hospital along with others. It is pertinent to note that appellant had informed PW1father of the deceased. Thereafter, appellant was also present during Inquest. The conduct of the appellant is incompatible with the guilt of the appellant. 20. Since both Pws.1,2,4 and 5 have turned hostile, learned Sessions Judge in extenso extracted the confession statement of the appellant and held that confession statement is to be taken as an admission of fact. FIR [Ex.P10] was registered on 212. 2003. After commencement of investigation any statement made by the accused could be utilized either for corroboration or contradiction. In the statement of appellant, there is clear admission of guilt and while so, learned Sessions Judge erred in taking few sentences in isolation and held that those sentences are to the effect of "admission of fact". 2003. After commencement of investigation any statement made by the accused could be utilized either for corroboration or contradiction. In the statement of appellant, there is clear admission of guilt and while so, learned Sessions Judge erred in taking few sentences in isolation and held that those sentences are to the effect of "admission of fact". Posing a question whether confession is admissible, learned Sessions Judge referred to Sec.17 of Evidence Act and 1953 SCR 94 [Palvinder Kaur v. Punjab] held that statement by the accused before the Investigating Officer does not amount to confession and held that it is an admission of fact on the aspects:- (i) accused was present in the house; (ii) that appellant had admitted the fact that he had taken the lunch on 212. 2003 and beaten the deceased. 21. In our considered view the statement recorded from the appellant on 110. 2004 would be clearly hit under Sec.26 of Indian Evidence Act. Under Secs. 145 and 155(3), of Indian Evidence Act former statements of a witness may be used for the purpose of contradicting him. Sec.157 says that a witnesss former statements may be proved in order to corroborate his present testimony. 22. Secs.17 to 31 of Indian Evidence Act generally deal with subject of admissions and confessions. An admission is defined in Sec.17 as a statement by a party as to any fact in issue or a relevant fact under circumstances mentioned in Secs.18 to 20 fulfilling the requirements of Sec.21. 23. As per Sec.21, an admission is relevant and may be proved against the author of it and his representative in interest. Once party accepts his earlier statement, it becomes substantive piece of evidence of fact (s) admitted therein in view of Secs.17 and 21. 24. Sec.17 is general section defining admission and referring to the circumstances and ways of making them which are enumerated i.e. Secs.18 and 20. As Exception to Secs.18 to 21, admission made to a Police Officer would be inadmissible in evidence. In view of the embargo U/s.25 of Indian Evidence Act, statement made to a Police Officer cannot be admitted in evidence and it cannot be construed as an admission. 25. When the statement of accused to a Police Officer does not amount to a confession but an admission, it may be proved against him. In view of the embargo U/s.25 of Indian Evidence Act, statement made to a Police Officer cannot be admitted in evidence and it cannot be construed as an admission. 25. When the statement of accused to a Police Officer does not amount to a confession but an admission, it may be proved against him. For the purpose of Sec.25 and the following Sections a "confession" as such should be carefully distinguished from a statement amounting to an admission, or of any incriminatory fact. So, statements by an accused which do not strictly come with the definition of "confession" are not excluded by Secs.25 and 26. 26. Although any non-confessional statement by an accused to the Police can be proved against him, a statement which forms part of a whole narrative ought not to be torn from its context. If the narrative as a whole is in nature of a confession and therefore inadmissible, the prosecution should not be allowed to single out-stray passages containing admissions. 27. As we have pointed out earlier, learned Sessions Judge detached few sentences here and there and remarked that they are admissions of facts made by the appellant. Learned Sessions Judge has not kept in view the purport of Secs.25 and 26 which lay down that confession made to Police Officer are inadmissible, excepting to the extent that they distinctly relate to the discovery of fact U/s.27 of Indian Evidence Act. Learned Sessions Judge misconstrued Secs.17 and 18 of Indian Evidence Act and erred in basing the conviction on the confession statement recorded by the Police Officer after the commencement of investigation. 28. Yet another circumstance relied upon by the prosecution is that opinion of PW3-Dr.Navaneethan that death was homicidal. PW3 conducted the autopsy on 212. 2003 and he had not then given his opinion. No poison was detected in the viscera. As per Bone Expert report [Ex.P4], hyoid bone was intact. Between August and October 2004, a questionnaire was given to PW3-Dr.Navaneethan by the Investigating Officer. In response to the said questionnaire, PW3 given reply [Ex.P6] opining as under:- "Ante Mortem injury on the Lungs is not due to Aliments in the body. It is possible due to mechanical violence caused in that part of body. "It is possible the injury can be caused without any external injury corresponding to the injury found on the lungs. In response to the said questionnaire, PW3 given reply [Ex.P6] opining as under:- "Ante Mortem injury on the Lungs is not due to Aliments in the body. It is possible due to mechanical violence caused in that part of body. "It is possible the injury can be caused without any external injury corresponding to the injury found on the lungs. "The injury can be caused by kicking on the corresponding part of the body can happen. Dashed on a hard and smooth surface by mechanical violence can happen. PW3 had given his view on 19.08.2004 that death could have been homicidal nearly 9 months after the occurrence. Statement recorded from PW3 was received in Court on 110. 2004. Opinion evidence by itself cannot form basis for conviction. As we have pointed out earlier, there was no iota of evidence to show that appellant had beaten the deceased. PWs.4 and 5 – daughters of PW2 who are to speak about beating of the deceased have not supported the prosecution case. While so, it would be unsafe to base conviction on the opinion evidence of medical expert. 29. Placing reliance upon 1996 SC (Cri) 1120 [P. Satyanarayana and another v. P. Mallaiah and others]; 2004 1 LW (Crl) 67 [Muthuvel and another v. State by Inspector of Police, Keelarajakularaman Police Station, Virudhunagar] and 2007 1 LW (Crl) 61 [Mohd. Fazluddin v. State, rep. by Inspector of Police, Chennai-101], learned Public Prosecutor contended that husband and wife were residing in the same house and appellant being inmate of the house bound to explain the death of the deceased. Learned Public Prosecutor would further submit that accused had given a false information to PW1 that the deceased died of suicide. At the time when PW2 saw the deceased inside the house, appellant was not present there. Only on being informed over phone by PW2-sister of deceased, appellant rushed to the house and thereafter took the deceased along with others to the hospital. 30. Whether inference of guilt could be drawn against the husband who is a co-habitant is to be determined in the facts and circumstances of each case. In the decisions relied upon by the learned Public Prosecutor, in the facts and circumstances obtaining thereon, Court drew inference of guilt against the accused a co-habitant. 30. Whether inference of guilt could be drawn against the husband who is a co-habitant is to be determined in the facts and circumstances of each case. In the decisions relied upon by the learned Public Prosecutor, in the facts and circumstances obtaining thereon, Court drew inference of guilt against the accused a co-habitant. In the present case, as the appellant was not inside the house and came to the house only on being informed over phone by PW2-sister of the deceased, no inference of guilt could be drawn against the appellant. This is all the more so, when there is no iota of evidence to show that accused was present in the house sometime prior to the occurrence. 31. Where a case rests squarely upon circumstantial evidence, inference of guilt can be justified only when all incriminating facts and circumstances are found to incompatible with the innocence of the accused. The proved circumstances do not convincingly establish the guilt of the accused and therefore, conviction of the appellant/accused is liable to be set aside. 32. In the result, this appeal is allowed by setting aside the conviction of the appellant in S.C.No.201/2005 dated 30.7.2007. Appellant is acquitted of the charges U/s.302 IPC. "Bail bond if any executed by the appellant shall stand cancelled. Fine amount paid by the appellant is ordered to be refunded.