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2019 DIGILAW 3036 (MAD)

Kumar v. State

2019-11-06

N.ANAND VENKATESH, S.VAIDYANATHAN

body2019
JUDGMENT : S. Vaidyanathan, N. Anand Venkatesh, JJ. 1. The appellant/sole accused, aggrieved by the judgment of the Additional District and Sessions Court, Ramanathapuram, dated 11.07.2017, in S.C. No. 55 of 2015, convicting the appellant for an offence under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay a fine of Rs. 5,000/- (Rupees Five Thousand only) and in default to undergo one year Simple Imprisonment, has filed the present appeal. Case of the Prosecution 2. The case of the prosecution is that the deceased is the father of the appellant and he was a paralytic patient, who was taken care by the appellant and he was aged about 73 years. It is the further case of the prosecution that the appellant was finding his father to be a hindrance for his peaceful life and therefore, he decided to do away with his aged father. On 30.09.2012 at about 09.00 p.m., he is said to have called his brother-in-law (P.W. 1), who was a auto driver to come to his house with the auto for taking his father to the Hospital. When the deceased was taken in the auto from R.S. Mangalam to Devipattinam en-route, he is said to have been strangulated by the appellant in the auto, resulting in his death. 3. The brother-in-law of the appellant (P.W. 1) lodged a complaint (Ex. P.2) before the S.S.I of Police (P.W. 7) on 01.10.2012, at about 07.00 a.m. Immediately an F.I.R (Ex. P.3) came to be registered by P.W. 7 and the express F.I.R was sent to the learned Judicial Magistrate. 4. The investigation was taken up by the Inspector of Police (P.W. 17) and he seized the auto (M.O. 1) from the de facto complainant (P.W. 1). He went to the place where the occurrence is said to have taken place, at about 08.30 a.m., and he prepared the Observation Mahazer (Ex. P.5) and also the Rough Sketch (Ex.P.10) in the presence of P.W. 9. He conducted the inquest over the dead body of the deceased and prepared the Inquest Report (Ex. P.11). The dead body was sent through the Head Constable (P.W. 8) with requisition for conducting a postmortem to the Government Hospital, Ramanathapuram. He proceeded to record the statement of the witnesses under Section 161 (3) of the Code of Criminal Procedure. 5. He conducted the inquest over the dead body of the deceased and prepared the Inquest Report (Ex. P.11). The dead body was sent through the Head Constable (P.W. 8) with requisition for conducting a postmortem to the Government Hospital, Ramanathapuram. He proceeded to record the statement of the witnesses under Section 161 (3) of the Code of Criminal Procedure. 5. The Investigating Officer, thereafter, arrested the appellant on 03.10.2012 at about 11.00 a.m., near Uppur Chathiram Bus stop in the presence of the witness (P.W. 10). The accused was produced before the learned Judicial Magistrate and he was remanded to judicial custody. 6. The Investigation Officer (P.W. 17) thereafter, handed over the entire case diary to the new incumbent and he had continued the investigation and recorded the statement of the other witnesses and filed a final report before the concerned Court. This Investigating Officer was not examined by the prosecution. 7. The case was committed to the file of the Additional District and Sessions Court, Ramanathapuram and the charges were framed against the appellant for the offence under Section 302 of the Indian Penal Code. The prosecution examined P.W. 1 to P.W. 17 and marked Ex. P.1 to Ex. P. 12 and exhibited M.O. 1. 8. The incriminating circumstances that were collected against the appellant in the course of trial, were put to him, when he was questioned under Section 313 (1) (b) of the Code of Criminal Procedure and he denied the same as false. 9. The Trial Court, on considering the facts and circumstances of the case and after analysing the oral and documentary evidence, came to the conclusion that the prosecution has proved the case beyond reasonable doubts and proceeded to convict the appellant for the offence under Section 302 of the Indian Penal Code. Submissions 10. Mr. 9. The Trial Court, on considering the facts and circumstances of the case and after analysing the oral and documentary evidence, came to the conclusion that the prosecution has proved the case beyond reasonable doubts and proceeded to convict the appellant for the offence under Section 302 of the Indian Penal Code. Submissions 10. Mr. M. Mahabood Athiff, who was appointed as the Legal Aid Counsel by this Court to represent the appellant, pursuant to the order dated 16.10.2019, passed by this Court, made the following submissions:- The case of the prosecution hinges upon the evidence of the eye witness, who was the auto driver and who was examined as P.W. 1 and he has not supported the case of the prosecution and he was treated as a hostile witness; The owner of the auto, the brothers of the accused person, who were examined as P.W. 2 to P.W. 6, have all turned hostile and did not support the case of the prosecution; Some of the independent witnesses, who were examined as P.W. 11 to P.W. 14, also turned hostile and they did not support the case of the prosecution; The Court below has dealt with the case by treating it as a case based on circumstantial evidence and it has solely relied upon the complaint (Ex. P.2) given by P.W. 1 and the evidence of the postmortem Doctor and has come to an erroneous conclusion that the prosecution has made out the case beyond reasonable doubts; The evidence of the postmortem Doctor, who was examined as P.W. 15 and the Postmortem Certificate marked as Ex. P.7, do not satisfy the conclusion that has been arrived at by the Doctor to the effect that the death was caused due to strangulation. P.7, do not satisfy the conclusion that has been arrived at by the Doctor to the effect that the death was caused due to strangulation. In order to substantiate this submission, the learned counsel relied upon the judgments of the Hon'ble Supreme Court in the case of Prabhudhayal and Others v. State of Maharashtra AIR 1993 SC 2164 : (1993) 3 SCC 573 : LNIND 1993 SC 470 and the Hon'ble Supreme Court in the case of Satish Nirankari v. State of Rajasthan AIR 2017 SC 3051 : (2017) 8 SCC 497 : LNIND 2017 SC 284; The Court below has relied upon the answers given by the appellant for the questions put to him under Section 313 of the Code of Criminal Procedure and has erroneously treated it as an evidence and the evidentiary value that has been ascribed to the answers given by the 313 question is not in accordance with law. In support of the said submission, the learned counsel relied upon the judgment of the Hon'ble Supreme in the case of Dehal Singh v. State of Himachal Pradesh AIR 2010 SC 3594 : (2010) 9 SCC 85 : LNIND 2010 SC 816 : (2011) 2 MLJ (Crl) 381. The learned counsel concluded his submissions stating that even if this case is taken to be a case of circumstantial evidence, the prosecution miserably failed to prove each and every circumstance and the chain of circumstances does not lead to the hypothesis that it was only the appellant, who had caused the death of the deceased. In order to substantiate the said submissions, the learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 : (1992) 3 SCC 300 : LNIND 1992 SC 359 : (1992) 1 MLJ (Crl) 742; 11. Per contra, Mr. S. Chandrasekar, learned Additional Public Prosecutor, appearing on behalf of the respondent made the following submissions:- It is an admitted case that the signature that was found in the complaint (Ex. P.2) is that of P.W. 1 and this was admitted by him in the evidence and the signature in the complaint was marked as Ex. Per contra, Mr. S. Chandrasekar, learned Additional Public Prosecutor, appearing on behalf of the respondent made the following submissions:- It is an admitted case that the signature that was found in the complaint (Ex. P.2) is that of P.W. 1 and this was admitted by him in the evidence and the signature in the complaint was marked as Ex. P.1; In view of the fact that almost all the witnesses turned hostile, the Court below was right in dealing with the case by taking into consideration the circumstances of the case and has rightly come to the conclusion that it was a clear case of patricide; The Court below had relied upon seven circumstances in order to come to the conclusion that it was only the appellant, who had caused the death of his father, since he found him to be a hindrance for his happy life and the Court below has taken every circumstances independently and analysed with the available evidence. The deficiencies that have been pointed out by the learned counsel appearing for the appellant regarding the conclusion that has been arrived at by the postmortem Doctor, have not been put to the postmortem Doctor and he has not been contradicted during cross-examination and therefore, even if there is any medical opinion that is available with regard to death by strangulation, the same cannot be used without putting the same to the postmortem Doctor, when he was in the box. There are absolutely no grounds to interfere with the judgment passed by the Court below and this Criminal Appeal is liable to be dismissed; 12. This Court has carefully considered the submissions made on either side and also carefully analysed the oral and documentary evidence that have been placed before this Court. Discussion 13. When the final report was filed by the Investigating Officer, the case of the prosecution was based on the evidence of the eye witness (P.W. 1), who is said to have driven the auto in which the appellant and his father had travelled. It was P.W. 1, who had given the complaint to the S.S.I of Police (P.W. 7). A reading of the complaint shows that the appellant and his father had travelled in the auto from R.S. Mangalam and before the auto reached Devipattinam, the appellant is said to have strangulated his father, resulting in his death. It was P.W. 1, who had given the complaint to the S.S.I of Police (P.W. 7). A reading of the complaint shows that the appellant and his father had travelled in the auto from R.S. Mangalam and before the auto reached Devipattinam, the appellant is said to have strangulated his father, resulting in his death. This incident is said to have taken place at about 10.00 a.m., on 30.09.2012 and the complaint was given before P.W. 8 on 01.10.2012 at about 07.00 a.m. 14. When P.W. 1 was examined before the Court as a witness, he did not support the case of the prosecution and therefore, he was treated as a hostile witness. The only relevant portion in his evidence is with regard to the signature found in the complaint (Ex. P.2) and he neither admitted the contents in the complaint nor did he toe the line of the prosecution. This witness was the most important witness in this case, since he is said to have driven the auto rickshaw in which the appellant and his father had travelled and except this witness, no one else could have spoken about the incident that had taken place inside the auto. 15. The Court below, after finding that P.W. 1 did not support the case of the prosecution, proceeded to deal with the case on the basis of the circumstantial evidence. The Court below has listed the following circumstances and analysed the same. Circumstances that have been listed by the Court below are extracted hereunder:- "(i) The deceased who was the father of the accused lived with the accused at his house at R.S. Mangalam. (ii) The deceased was an old paralytic patient (iii) The accused thought that the deceased was an hindrance to his peaceful living with his wife. (iv) The accused took the deceased from his house at R.S. Mangalam in the night about 09.00 p.m. travelled to Devipattinam in the auto of P.W. 1. (v) The accused strangulated and killed the deceased in the auto while going towards Devipattinam. (vi) The deceased was brought as a dead body to Devipattinam by the accused. (vi) The body was seized by the Police at Devipattinam from the native house of the accused and the deceased." 16. (v) The accused strangulated and killed the deceased in the auto while going towards Devipattinam. (vi) The deceased was brought as a dead body to Devipattinam by the accused. (vi) The body was seized by the Police at Devipattinam from the native house of the accused and the deceased." 16. It is true that the Court cannot express its helplessness when the material witnesses turned hostile, when they are examined in the Court and it is the duty of the Court to ultimately find out the truth. Therefore, in a given case, it is possible for the Court to take various circumstances that emanate from the case and see if those circumstances have been proved by the prosecution, before coming to a final conclusion. 17. In a case of circumstantial evidence, what has to be borne in mind is that every circumstance must be fully proved and the circumstance must form the chain of evidence so as to exclude every hypothesis other than the guilt of the accused. This position of law is well settled and the judgment cited by the learned counsel appearing for the appellant in the case of State of Uttar Pradesh v. Dr. Ravindra Prakash Mittal (supra) reiterates the law on the issue. 18. It is an admitted fact that the deceased is the father of the appellant. The Court below has relied upon a circumstance that the father of the appellant was suffering from paralysis and the appellant was finding it difficult to maintain him. This circumstance that has been relied upon by the Court below has not been spoken by any one and probably, the Court below has taken this circumstance from the complaint (Ex. P.2). The contents of the complaint have been disowned by P.W. 1 and therefore, to prove this circumstance, the Court below could not rely upon the evidence in the complaint. 19. The next circumstance that has been relied upon by the Court below is that the appellant had travelled along with his father from R.S. Mangalam to Devipattinam in the auto driven by P.W. 1. Again this circumstance has not been spoken by any witness and the only person, who could have spoken about the same is P.W. 1 and he has not supported this version before the Court below and as a result of which, he was treated as a hostile witness. 20. Again this circumstance has not been spoken by any witness and the only person, who could have spoken about the same is P.W. 1 and he has not supported this version before the Court below and as a result of which, he was treated as a hostile witness. 20. The next circumstance that has been relied upon by the Court below is the evidence of the Doctor and the Postmortem Certificate. The Postmortem Doctor, who was examined as P.W. 15, has stated that the deceased had died due to strangulation and hyoid bone on the right side was broken. The learned counsel appearing for the appellant questioned the findings of the Doctor on two grounds. First ground that has been raised by the learned counsel appearing for the appellant is that the Doctor had specifically stated in his evidence that at the time when he examined the dead body, there was no rigor mortis that had set in. The learned counsel submitted that the rigor mortis normally starts setting in after two hours after the person dies and it will take nearly 12 hours for rigor mortis to set in the entire body and that has been spoken to by P.W. 15 in his evidence. If this is taken into consideration, the postmortem was conducted on 01.10.2012 at about 03.45 p.m., and the incident is said to have taken place on 30.09.2012 at about 10.00 p.m. and the said postmortem was conducted nearly after 17 hours and therefore, at the time, when the postmortem was conducted, there must have been rigor mortis in the body of the deceased and it was not found. Therefore, there is a very serious doubt with regard to the time at which the incident is said to have taken place in this case. The next ground that has been taken by the learned counsel appearing for the appellant is that the symptoms that have been noted in the postmortem Certificate do not satisfy the requirements of a death by strangulation. In order to appreciate this submission, it is relevant to extract the finding in the postmortem Certificate:- "Moderately nourished male body lies on back. Eyes closed. Tongue within the mouth. Nail marks seen over the front and both sides of the neck. Left upper and lower limb malnourished. Multiple nail marks seen. Neck opened. Hyoid bone broken right side. Thorax opened. Lungs pale. Abdomen opened. Eyes closed. Tongue within the mouth. Nail marks seen over the front and both sides of the neck. Left upper and lower limb malnourished. Multiple nail marks seen. Neck opened. Hyoid bone broken right side. Thorax opened. Lungs pale. Abdomen opened. Internal organs intact. Skull opened. No haemorrhage seen. The following organs sent for chemical analysis. Stomach and its contents, part of liver, spleen, kidney, sample of preservative. Time of death 18-24 hours prior to time of the Postmortem. cause of Death pending chemical analysis report." The Doctor has given a final report (Ex. P.8) to the effect that the cause of death is strangulation. 21. At this juncture, it will be relevant to rely upon the judgment, that was cited by the learned counsel appearing for the appellant. The Hon'ble Supreme Court in the case of Prabhudhayal and Others v. State of Maharashtra (supra), has placed extensive reliance on a book written by Dr. K.S. Narayana Reddy, and has held as follows:- "30. Dr. K.S. Narayan Reddy, M.D. D.C.R, M.I.A.F.M., F.I.M.S.A., F.A.F. Sc., Professor of Forensic Medicine, Osmania Medical College Hyderabad in his well known treatise The Essentials of Forensic Medical and Toxicology, Sixth Edn. at page 255 gives descriptions of internal as well as external symptoms of manual strangulation. At page 255 while dealing with signs of asphyxia, the learned author observes: "The face may be livid, blotchy and swollen, the eyes wide open, bulging and suffused, the pupils dilated, the tongue swollen, dark-coloured and protruded. Petechial hemorrhages are common into the skin of the eyelids, face, forehead, behind the ears and scalp. Bloody froth may escape from the mouth and nostrils and there may be bleeding from the nose and ears. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid." Internal injuries described little later included as under: "The larynx, trachea and bronchi are congested and contain frothy, often blood stained mucus. The lungs are markedly congested and show ecchymoses and larger subpleural hemorrhages. Dark fluid blood exudes on section. Silvery-looking spots under the pleural surface due to rupture of the air cells which disappear on pricking, are seen in more than 30% cases. The parenchymatous organs show intense venous congestion, and in young persons ecchymoses are usually seen on the heart and kidneys. The brain is congested and shows petechial hemorrhages. Dark fluid blood exudes on section. Silvery-looking spots under the pleural surface due to rupture of the air cells which disappear on pricking, are seen in more than 30% cases. The parenchymatous organs show intense venous congestion, and in young persons ecchymoses are usually seen on the heart and kidneys. The brain is congested and shows petechial hemorrhages. The right side of the heart is full of dark fluid blood and the left empty. Both the cavities are full if the heart stopped during diastole." 22. It is also relevant to rely upon the judgment of the Hon'ble Supreme Court in the case of Satish Nirankari v. State of Rajasthan (supra). The relevant portions of the judgment are extracted hereunder.:- "38. Coming to the cause of death, the learned counsel for the appellant had argued before us, as well as in the High Court, that as per Modi's Medical Jurisprudence and Toxicology, there are 16 main distinctions in death caused by hanging or strangulation. According to the medical evidence, second ligature mark was ending towards back of the neck and it was oblique going upwards and ligature mark was shining. The hyoid bone was intact, there was no fracture of larynx and trachea. There were no scratches, abrasions and bruises on face, mouth and ears. There were no abrasions and ecchymosis around about the edges of the ligature mark. Subcutaneous tissues under the ligature mark were white, hard and glistering. There were no injuries to muscles of neck. The saliva was dribbling. If the death would have been strangulation then fracture of larynx and trachea and hyoid bone was a must, there should have been scratches, abrasions and finger nail marks and bruises on the face, neck and other parts of the body. Saliva would not be dribbling, ligature mark would have been horizontal and not oblique, it would have lower down in the neck and not upwards to the chin. There should have been abrasions and ecchymosis round about the edges of the ligature marks. Subcutaneous tissues should have ecchymosed, there should have been some injuries to muscles of neck, carotid arteries, internal coat should have been ruptured, whereas there was no such rupture. The prosecution failed to prove that the cause of death was homicidal. Dr. S.K. Pathak (P.W. 3) did not say that death was homicidal in nature. Postmortem report (Ext. Subcutaneous tissues should have ecchymosed, there should have been some injuries to muscles of neck, carotid arteries, internal coat should have been ruptured, whereas there was no such rupture. The prosecution failed to prove that the cause of death was homicidal. Dr. S.K. Pathak (P.W. 3) did not say that death was homicidal in nature. Postmortem report (Ext. P-4) also does not say that it was homicidal. 39. This aspect is not even dealt with by the High Court. Further, the alleged Weapon i.e., cable wire was not sent to CFSL and to any scientific laboratory to confirm fingerprints of the appellant. All the aforesaid factors amply demonstrate that the prosecution has not been able to bring out and prove the guilt of the appellant beyond reasonable doubt. There are lurking doubts in the story of the prosecution and many missing links which are point out above;" 23. The Hon'ble Supreme Court has relied upon some texts in order to appreciate as to what are the consequences of strangulation when the deceased is examined externally and internally. It is clear from the texts that had been relied upon that there are certain normal signs that emanate in a case of strangulation. "The external indications are the face may be livid, blotchy and swollen, the eyes wide open, bulging and suffused, the pupils dilated, the tongue swollen, dark-coloured and protruded. Petechial hemorrhages are common into the skin of the eyelids, face, forehead, behind the cars and scalp. Bloody froth may escape from the mouth and nostrils and there may be bleeding from the nose and cars. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid. The internal injuries that can be found in the strangulation are the larynx, trachea and bronchi are congested and contain frothy, often blood stained mucus. The lungs are markedly congested and show ecchymoses and larger subpleural hemorrhages. Dark fluid blood exudes on section. Silvery-looking spots under the pleural surface due to rupture of the air cells which disappear on pricking, are seen in more than 30% cases. The parenchymatous organs show intense venous congestion, and in young persons ecchymoses are usually seen on the heart and kidneys. The brain is congested and shows petechial hemorrhages. The right side of the heart is full of dark fluid blood and the left empty. The parenchymatous organs show intense venous congestion, and in young persons ecchymoses are usually seen on the heart and kidneys. The brain is congested and shows petechial hemorrhages. The right side of the heart is full of dark fluid blood and the left empty. Both the cavities are full if the heart stopped during diastole." 24. In the present case, the evidence of the postmortem Doctor (P.W. 15) and the Postmortem Certificate only reveal the fact that the hyoid bone was found broken on the right side and none of the other symptoms, that are normally found in the cases of strangulation externally and internally, has been noted in the postmortem Certificate. Therefore, there is a doubt with regard to the conclusion that has been arrived at by the postmortem Doctor that the cause of the death is only due to strangulation. That apart, the evidence of the postmortem Doctor and the postmortem Certificate reveal the fact that there were nail marks in the neck of the deceased and no efforts were taken to match the nail marks of the appellant with those nail marks found in the body of the deceased. 25. In view of the above, the reliance placed upon by the trial Court on the medical evidence to prove the circumstance of the cause of the death also becomes highly questionable. In the considered view of this Court, the same has not been established beyond reasonable doubts. 26. The last circumstance that has been relied upon by the Court below is the answers that were given by the appellant for the questions that were put to him under Section 313 of the Code of Criminal Procedure. At this juncture, it will be relevant to extract the portions of the judgment that was cited by the learned counsel appearing for the appellant in the case of Dehal Singh v. State of Uttar Pradesh (supra). The relevant portions of the judgment are extracted hereunder:- "23. Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. The appellants have not chosen to examine any other witness to support this plea and in case none was available there were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined with reference to those statements. However, when an accused appears as a witness in defence to disprove the charge, his version can be tested by his cross-examination. Therefore, in our opinion the plea of the appellant Dinesh Kumar that he had taken lift in the care is not fit to be accepted only on the basis of the statements of the appellants under Section 313 of the Code of Criminal Procedure." 27. It is clear from the above judgment that the statement recorded under Section 313 of the Code of Criminal Procedure cannot be treated as an evidence within the meaning of Section 3 of the Indian Evidence Act. The questions that are being put under Section 313 of the Code of Criminal Procedure may be of relevance where the questions pertain to certain facts which are within the personal knowledge of the accused person and he is bound to answer the same since burden is cast upon him under Section 106 of the Indian Evidence Act. In order to rely upon the statement made under Section 313 of the Code of Criminal Procedure as one of the links in the chain of circumstances, it is important to see whether the accused by not answering/explaining has failed to reveal certain things, which are especially within his personal knowledge. The facts of the present case will not come within this category. The facts of the present case will not come within this category. None of the witnesses had supported the case of the prosecution and, therefore, there were no incriminating materials that were available against the appellant and therefore, there is no occasion for the appellant to give his explanation for any of the questions that were put by the Court below on the basis of the evidence collected. Therefore, the Court below has misdirected itself by putting the burden upon the appellant and by treating the statement made in the 313 questioning like an evidence and such an approach is clearly opposed to the judgment that has been cited supra. 28. In view of the above discussions, this Court comes to a conclusion that the prosecution has miserably failed to prove its case and the appellant is entitled to be acquitted from the charge for the offence under Section 302 of the Indian Penal Code. The judgment of the Court below therefore requires interference. Conclusion 29. In the result, the judgment of the Additional District and Sessions Court, Ramanathapuram, dated 11.07.2017, made in S.C. No. 55 of 2015, is hereby quashed and the appellant is acquitted from the charge of Section 302 of the Indian Penal Code. The appellant is directed to be set at liberty in this case, if his confinement is not required in any other case. Accordingly, the Criminal Appeal is allowed. Before parting with this case, this Court wishes to place its appreciation for the sincere efforts made by Mr. M. Mohabood Athiff, learned counsel, who had thoroughly prepared this case and had placed the entire law on the issue and enabled this Court to come to a conclusion in this Criminal Appeal.