Ramesh v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 25.8.2009CoramThe Hon’ble Mr.Justice C.NAGAPPANandThe Hon’ble Mr.Justice M.JEYAPAULCriminal Appeal No.41 of 2009Ramesh.. Appellantvs. State rep by The Inspector of Police,Viruthachalam Police Station,Cuddalore District. .. RespondentFor appellant : Mr.T.MurugananthamFor respondent : Mr.Hassan Mohamed Jinnah Additional Public ProsecutorPrayer:- Criminal Appeal to set aside the conviction and sentenceimposed in S.C.No.302 of 2007 dated 28.4.2008 on the file of theAdditional Sessions Court (FTC No.3), Viruthachalam. JUDGMENT(Judgment of the court was delivered by M.JEYAPAUL, J.)The sole accused, who was convicted for the charge under section302 of the Indian Penal Code and was sentenced to undergo lifeimprisonment and also convicted for the charge under section 397 ofthe Indian Penal Code and was sentenced to undergo seven yearsrigorous imprisonment, moves the present criminal appeal.2. On the side of the prosecution, P.Ws.1 to 30 were examinedand Exs.P1 to P24 and M.Os.1 to 9 were marked. There is neither oralnor documentary evidence on the side of the accused.3. The brief summary of the case of the prosecution as spoken toby the witnesses reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ i) The deceased Alamelu is the wife of PW1 Selvaraj. PW2Chandrasekaran and PW3 Rajendran are the brothers of PW1 Selvaraj.PW10 Vemban is the son of PW1. PW14 Suresh is the son of the otherbrother of PW1. ii) PW1 Selvaraj had been to foreign country for about ten longyears to eke out his livelihood. Just about eight months prior tothe occurrence, he came down to his village Eramanoor. iii) On 9.12.2006, PW17 Poomalai, brother-in-law of PW1 Selvarajand brother of the deceased Alamelu, one Muthusamy and PW1 Selvarajwent by TVS XL vehicle to the fieled of PW3 Rajendran for the purposeof collecting plantain stem. Beforeever proceeding to the house ofPW17 Poomalai, he contacted his wife from the petrol bunk located atSalem Road. After making a call to his wife, PW1 proceeded to Vepurafter leaving PW11 Muthukrishnan at Adari. From Vepur, PW1 proceededto Virudhachalam and having taken a cycle from the shop of Sekar,went to Virudhachalam Union Office. He arrived at No.18 Deluxe Lodgein Virudhachalam to meet the Surveyor but, he was not found overthere. Therefore, he came down to the shop of Sekar and left thecycle over there. Accompanied by Kalaiselvan, he went to the officeof the Village Administrative Officer, who had received some depositamount from him for the purpose of measuring the property belongingto PW1 Selvaraj and his brothers. The Village AdministrativeOfficer, who received separately some deposit amount from PW1 did notreturn the said amount and therefore, the said amount was demandedback by PW1. At 4.30 pm, PW8 Arumugam came down to Virudhachalam andinformed PW1 that Alamelu, the wife of PW1 was missing and cattleswhich strayed were tethered by him. PW1 alongwith his friends,having taken tiffin at Arcot Hotel, returned to his village at about6.00 pm on the said day. iv) He contacted PW9 Seetha, wife of PW2 Chandrasekaran andenquired about Alamelu. She informed PW1 that cattles alone returnedto the house, but not Alamelu. PW1 and his close relatives went insearch of Alamelu. The places where Alamelu used to graze the cattlewere searched. One Muthusamy located a towel of the deceased in thefield of PW8 Arumugam. At a distance of about two metres fromthere, PW1 found the dead body of his wife with the injury on herneck. There was a ligature mark around her neck. The blouse wastorn off. Nail marks were found. There was also an injury on hercheek. The petticoat was found on the upper portion of the body.The gold ornaments worn by Alamelu were missing. Blood had oozed outfrom ear and nose. The dead body of Alamelu was shifted to the houseof PW1. https://hcservices.ecourts.gov.in/hcservices/ v) PW1 Selvaraj, thereafter, proceeded to Virudhachalam PoliceStation and lodged the complaint, Ex.P1 to PW28 Nagarajan at about0030 hours at 10.12.2006. PW28 registered a case in Crime No.470/06and prepared printed FIR, Ex.P18. He despatched the original to thelearned Judicial Magistrate and the copies thereof to the higherofficials concerned. vi) PW29 Prasannakumar, Inspector of police attached toVirudhachalam Police Station received a copy of the FIR at about 1.00am on 10.12.2006 and rushed to the scene of occurrence at about 2.30am. He went to the field of PW8 Arumugam and inspected the same andprepared observation mahazar. He also drew rough sketch, Ex.P23reflecting the scene of occurrence. At about 6.30 am on the saidday, he recovered a pair of chappals, M.O.8 and cell phone, M.O.9under relevant seizure mahazar, Ex.P19. He also inspected theverandah portion of the house of PW1 Selvaraj where the dead body wasplaced and prepared observation mahazar. He also drew rough sketch,Ex.P24 reflecting the location where the dead body was placed infront of the house of PW1 Selvaraj. vii) PW29 conducted inquest on the dead body of Alamelu between8.00 am and 10.00 am on the said day in the presence of witnessesand panchayatdars and prepared inquest report, Ex.P20. He examinedthe witnesses Ganapathy and Govindasamy and recorded theirstatements. He arranged to take photographs, Ex.P14 series and Ex.P15series through the photographer, PW24 Dheepan. viii) PW7 Kasthuri received a requisition from PW29Prasannakumar for the purpose of conducting post mortem examinationon the dead body of Alamelu. She commenced post mortem examinationat 1.30 pm on 10.12.2006. She found that there was no rigor mortisin all the limbs of the dead body. She found the following injurieson the dead body of Alamelu:-"The body lies on its back with extension of alllimbs. Eyes closed. Bleeding from both nostrilsface blackened. Eye balls swollen. Mouth opened.Tongue within the mouth. Bleeding from both ears.On wiping that bleeding no evidence of externalinjuries of ear pinna & middle ears.Ligature Mark: In the neck about 5x1/2x1/2 cm overright side of the neck (anterior aspect) 2 HumanNail marks about each 2 cms in length. Ligaturewhich runs transversely leaving free of ligature https://hcservices.ecourts.gov.in/hcservices/ mark over throid prominence left side of theAnterior Aspect of the Ligature mark is transverseabout 5x1x1/2 cm in size left side of the neck moreblackened. Blackening of the skin over the neck, upperchest, face shoulder and engorgement of vessels areseen. On exploration of the skin, sub cuticulartissue congested. Parchment was absent under therope mark. Hyoid bone was found to be broken andsent for H.P.E. Thyroid Cartilage was also found tobe broken. Neck muscles were bruised (congested).Breast: Normal. Thorax: All bones intact. Heart:Chambers empty lungs congested. Abdomen: Allinternal organs pale. Stomach: Contains undigestedfood particles. Uterus cavity empty. Viscerapreserved & sent for chemical analysis. Skull: Allbones intact. Brain: Pall & semisolid inconsistency. External Genitalia: No evidence ofexternal injury over vagina. Thigh, Public area.Vaginal introitus pale & dry. So Vaginal smear nottaken."She has opined in the post mortem report that the deceased appearedto have died about 18 to 24 hours prior to autopsy. She has opinedthat the deceased appeared to have died of asphyxia due tostrangulation in the final report, Ex.P3 issued by her. ix) PW12 Dr.Vijayalakshmi examined the hyoid bone sent forexamination. On examination, she opined in the certificate, Ex.P4that there was no ante mortem injury in the hyoid bone sent forexamination except the post mortem dislocation of the right greaterhorn. x) On 11.12.2006, PW29 examined the witnesses Chandrasekaran,Vemban, Sathya, Muthammal, Seetha, Deivasigamani, Varadarashan,Suresh and Ramalingam and recorded their statements. He examined theother witnesses on 12.12.2006, 17.12.2006 and 19.12.2006 and recordedtheir statements. xi) On 20.12.2006, at about 6.00 am, PW29 arrested PW1 Selvaraj,the husband of the deceased Alamelu at Manalur Railway Gate. Hevoluntarily gave a confession statement in the presence of PW19Kadhirvel and another witness by name Ezhaiselvan. He recorded hisconfession statement at 8.00 am. PW29 submitted a requisition to thelearned Judicial Magistrate, Thittakudi to record the confession https://hcservices.ecourts.gov.in/hcservices/ statement of the witnesses Muthusamy and Arumugam under section 164of the Code of Criminal Procedure . xii) On 5.2.2007, PW29 received a communication from theInspector of Police, Kallakurichi that the accused Ramesh involved inthe case in Crime No.45 of 2007 of Kallakurichi Police Station hadgiven a judicial confession relating to the present occurrence also.On 6.2.2007, he submitted a requisition to the learned JudicialMagistrate seeking police custody. He took police custody of Rameshon 16.2.2007. On 17.2.2007, at about 8.00 am, the accused Rameshvoluntarily gave confession statement in the presence of PW26Subramanian and another witness by name Sivaperumal. On the basis ofthe admissible portion, Ex.P16 found in the confession statement ofthe accused Ramesh, M.O.1 thaali, M.O.2 one pair of ear ring andM.O.3 nose ring were recovered from the jewellery shop of PW21Balakrishnan under relevant seizure mahazar, Ex.P17. PW29 despatchedall the M.Os. recovered in this case to the learned JudicialMagistrate. xiii) The Superintendent of Police, having come to know that theaccused Ramesh had confessed a spate of offences committed by him atvarious places in the confession statement he had given before thelearned Judicial Magistrate under section 164 of the Code of CriminalProcedure, he issued the proceedings in Na.Ka.No.K1/4413/07 dated19.2.2007 forming a team to investigate the case. The saidproceedings was marked as Ex.P21. PW30 Narayanasamy, Inspector ofPolice, as per the directions of the Superintendent of Police, tookup this case for further investigation on 17.3.2007 as per theseparate proceedings issued by him under Ex.P22. He proceeded to theoccurrence village Erumanoor at about 2.30 pm on 17.3.2007, inspectedthe scene of occurrence in the presence of PW19 Kadhirvel and oneEzhaiselvan and prepared observation mahazar. He also drew roughsketch, Ex.P23. He came down to the house of PW1, inspected the sameand prepared another observation mahazar. He also drew rough sketch,Ex.P24 in the presence of the very same witnesses. He again examinedall the witnesses in this case on 17.3.2007 and 21.3.2007 to24.3.2007, 9.4.2007, 10.4.2007, 17.4.2007, 18.4.2007 and 19.4.2007and recorded their statements. He having completed the investigation,laid final report as against the accused before the learned JudicialMagistrate on 19.4.2007.xiv) The incriminating portion found in the testimony of thewitnesses examined on the side of the prosecution were put to theaccused Ramesh during the proceedings under section 313 of the Codeof Criminal Procedure. He, having feigned ignorance of theincriminating circumstances spoken to by the witnesses, has stated https://hcservices.ecourts.gov.in/hcservices/ that a false case was foisted on him after arresting him atKallakurichi Bus Stand. 4. The prosecution has come out with a case of murder for gainpunishable under section 302 and 397 of the Indian Penal Code. Thereis no direct evidence either for the commission of murder or therobbery alleged to have been committed by the accused. Theprosecution relies upon the following three circumstances to rope inthe accused with respect to the aforesaid charges. The confessionalleged to have been given by the accused under section 164 of theCode of Criminal Procedure before the learned Judicial Magistrate isfound to be one of the circumstances banked on by the prosecutingagency. The next circumstance is the discovery statement given bythe accused which led to the recovery of M.O.1 to M.O.5 and thevirtual recovery of M.O.1 to M.O.5 from PW21 Balakrishnan at theinstance of the accused. 5. The Trial Court rejected the confession statement alleged tohave been given by the accused under section 164 of the Code ofCriminal Procedure on the ground that section 164(4) of the Code ofCriminal Procedure which is found to be mandatory was not adhered toby the Judicial Magistrate at the time when the said confession wasrecorded. Of course, the Trial Court relied upon the disclosurestatement given by the accused and the recovery of M.O.1 to M.O.3from PW21 at the instance of the accused. Based on those twocircumstances, the Trial Court returned a verdict of confession notonly for offence under section 302 of the Indian Penal Code but alsofor offence under section 397 of the Indian Penal Code. 6. Learned counsel appearing for the appellant/accused wouldsubmit that though the witness to the alleged voluntary confessiongiven by the accused has spoken to the admissible portion of theconfession statement alleged to have been given by the accused andthe recovery of M.O.1 to M.O.3, PW21 Balakrishnan completely turnedhostile to the version of the prosecution. Therefore, the allegedrecovery of the Material Objects cannot be relied upon. He wouldalso submit that the prosecuting agency has come out with twoparallel versions, one against PW1 who was originally projected asthe sole accused in this case and another against the presentaccused. Therefore, he would submit that the recovery part of thecase of the prosecution projected by them falls short of credibility.7. Learned Additional Public Prosecutor would vehemently submitthat the recovery part of the case of the prosecution was spoken tonot only by PW26 Subramanian but also by the investigating official,PW29 and the material objects M.O.1 to M.O.3 were identified by PW21 https://hcservices.ecourts.gov.in/hcservices/ husband of the victim. No explanation was forthcoming from theaccused as to the possession of those material objects in hiscustody. Therefore, the Trial Court has rightly relied upon thosecircumstances and rendered a verdict of conviction, he would submit. 8. It is the case of the prosecution that the present accusedRamesh voluntarily gave confession before the learned JudicialMagistrate under section 164 of the Code of Criminal Procedure. Itis only on that basis, it appears that the investigating agency wokeup and directed its investigation as against the accused herein,having completely left in the lurch the original case of theprosecution launched very vehemently against PW1 who is none otherthan the husband of the deceased. On a close scrutiny of theconfession statement alleged to have been recorded by the leanedJudicial Magistrate from the accused under section 164 of the Code ofCriminal Procedure, it is found that the mandatory provision undersection 164(4) of the Code of Criminal Procedure was not adhered toby the Judicial Magistrate while recording the said confession. 9. Section 164(4) of the Code of Criminal Procedure mandatesthat the learned Judicial Magistrate shall make a memorandum at thefoot of the record of proceedings that he did explain to the accusedthat he was not bound to make a confession and that if he did so, anysuch confession he made would be used as evidence against him.Further, the learned Judicial Magistrate should also record that he,in fact, believed that such a confession was voluntarily made andthat it was taken in his presence and hearing. He should alsoscrupulously record at the foot of the proceedings that he, in fact,read over to the accused and he having admitted the confessionrecorded by him as correct. The learned Judicial Magistrate is alsosupposed to vouch safe that his proceedings contain a full and trueaccount of the statement made by the accused. 10. Quite unfortunately, the learned Judicial Magistrate did notfollow the aforesaid mandatory prescription found under section 164(4) of the Code of Criminal Procedure. Further, the learned JudicialMagistrate has observed that in spite of the time offered to theaccused to reflect upon his proposal to give confession, he proceededto record the confession statement of the accused as he did notchoose to avail such an opportunity and he came out with a firmconviction to disclose his heart by way of confession statement. 11. The learned Judicial Magistrate, in spite of such a responsefrom the accused, should have, in all fairness, given atleast a fewhours to the accused to reflect upon as he had come directly from thepolice custody. The Bench of this court had an occasion to deal with https://hcservices.ecourts.gov.in/hcservices/ the very same confession statement in connection with Criminal AppealNos.249 and 247 of 2008. In the said case also, the Bench of thiscourt chose to reject the very same confession recorded under section164 of the Code of Criminal Procedure from the very same accusedfor the aforesaid reasons. 12. In view of the above, we find that the confession given bythe accused under section 164 of the Code of Criminal Procedurecannot be relied upon as one of the material piece of circumstancesto rope in the accused for the offence under section 397 and 302 ofthe Indian Penal Code. 13. Coming to the disclosure statement alleged to have beengiven in the presence of PW26 Subramanian, it is of course, foundthat PW26 Subramanian has spoken to the disclosure statement given bythe accused which led to the recovery. But the case of theprosecution that the recovery was effected from the shop of PW21Balakrishnan was completely disowned by PW21 Balakrishnan. He hasturned wholesale hostile to the case of the prosecution. He has comeout with the version that on account of the pressure mounted by PW29Prasannakumar, he gave M.Os.1 to 3. It is not a case where PW21Balakrishnan was rest content with such statement before the court.It is found on record that he had pursued the matter and gave acomplaint as against PW29 Prasannakumar alleging that under threatthe aforesaid Material Objects were retrieved from him.14. In this context, we will have to refer to the other parallelcase originally projected by the investigating officer. Verystrangely, PW1 Selvaraj husband of the deceased was hauled upimmediately after the occurrence for the offence of murder of hiswife. The investigating official has also projected a voluntaryconfession statement alleged to have been given before PW19 Kadhirvelwhich led to the arrest of the accused and recovery of thaali threadM.O.5 at the instance of the accused. In fact, M.O.5 thaali threadwas projected as weapon of offence by the prosecuting agency at theinitial stage. The aforesaid facts and circumstances also convinceus to disbelieve the latter story of the recovery of the materialobjects M.O.1 to M.O.3 from the present accused. Suffice it to saythat the entire investigation done by the investigating agency iscompletely tainted. 15. Of course, the prosecuting agency could establish throughmedical evidence that the unfortunate victim Alamelu the wife of PW1Selvaraj died violent death on account of strangulation. PW1Selvaraj has suffered for about two long months at the hands of theinvestigating agency and thereafter the investigation has taken a https://hcservices.ecourts.gov.in/hcservices/ different route under which the present accused was roped in. On acareful analysis of the entire case of the prosecution , we findthat doubt writ large on each and every circumstance projected by theprosecuting agency against the present accused. Further, none of thecircumstances also has been clinchingly established by theinvestigating agency. 16. In view of the above, we find that the charges under section302 and 397 of the Indian Penal Code stood not established by theprosecution beyond reasonable doubt against the accused and as aresult of which, the judgment of conviction and sentence recorded bythe Trial Court will have to be upset. 17. In the result, we set aside the judgment of convictionrecorded by the Trial Court under section 397 and 302 of the IndianPenal Code as against the accused and the sentences imposedthereunder in S.C.No.302 of 2007 on the file of the AdditionalDistrict Sessions Court (FTC 3), Virudhachalam and the accused isacquitted of both the charges. He is set at liberty forthwith unlesshe is required in connection with any other case. The appeal standsallowed. Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarssk. To1. The Additional District andSessions Judge, (Fast Track Court No.III), Virudhachalam.2. The Additional District andSessions Judge, (Fast Track Court No.III), Virudhachalam. Through The Principal District & SessionsJudge, Cuddalore.3. The Judicial Magistrate I, Virudhachalam. https://hcservices.ecourts.gov.in/hcservices/

4. The Inspector of Police, Virudhachalam Police Station, Cuddalore District. 5. The Superintendent of Prisons, Central Prison, Cuddalore-4. (in duplicate for communicate to the accused)6. The Director General of Police, Mylapore, Chennai 600 004. 7. The District Collector, Cuddalore District, Cuddalore.8. The Public Prosecutor, High Court, Madras. 9. The Section Officer, Criminal Side Section, High Court, Madras. + 1 cc to Mr.T.Muruganantham,Advocate,SR.41952Crl.A.No.41 of 2009BV(CO)EM/14.9.09