Manoharan v. State rep. by The Inspector of Police, Anupperpalayam Police Station, Tiruppur, Coimbatore District

Bail Slip--The Appellant/Accused viz Manoharan was directed to beenlarged on bail in and by the order of this court dated 13.12.2006in Crl.M.P.No.1 of 2006IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.06.2008CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE K.N.BASHACriminal Appeal No.954 of 2006Manoharan .. Appellant/AccusedVs.State rep. byThe Inspector of Police,Anupperpalayam Police Station,Tiruppur,Coimbatore District.(Cr.No.319 of 2002).. Respondent/Complainant* * *Prayer : Criminal Appeal filed under Section 374 (2) of the Code ofCriminal Procedure against the Judgment of conviction passed by thelearned learned Additional Sessions Judge, Fast Track Court No.IV,Coimbatore at Tiruppur, in S.C.No.43 of 2006 dated 25.07.2006. * * *For Appellant : Mr.D.Selvaraju for M/s.C.S.SaravananFor Respondent:Mr.N.R.Elango, Additional Public ProsecutorJ U D G M E N T(Judgment of the court was delivered by K.N.BASHA, J.) The sole accused, Manoharan, has come forward with this appealchallenging the impugned judgment of conviction and sentence dated25.07.2006 passed by the learned Additional Sessions Judge, FastTrack Court No.IV, Coimbatore at Tiruppur, made in S.C.No.43 of 2006convicting the accused for the offence under Section 302 IPC andsentencing him to undergo life imprisonment and also imposing a fineof Rs.1,000/-. https://hcservices.ecourts.gov.in/hcservices/

2. The occurrence in this case is shown to have taken placeduring the intervening night between 19.06.2002 and 20.06.2002 atVanjipalayam Railway line wherein the accused pushed the deceased,Manickam, in front of a running train with an intention to murder thedeceased as a result of which the body of the deceased was crushedand the deceased died on sustaining injuries and thereby the accusedis liable to be punished under Section 302 IPC.3. The prosecution, in order to bring home the charges againstthe accused, examined P.Ws.1 to 16, filed Exs.P.1 to P.11 besidesmarking M.Os.1 to 5.4. The brief facts of the case as unfolded through the evidenceadduced by the prosecution during the course of trial are as follows :(i) P.W.7 is the wife of the deceased and P.W.8 is the father ofthe deceased. The accused and the deceased were friends. P.W.7 andthe deceased got married 11 years prior to the occurrence and twochildren were born out of their wedlock. The deceased was working ina banian company as an Iron Master. P.W.7 was used to wash cloths in2- 3 houses at Thiru.Vi.Ka.Nagar. The accused used to visit thehouse of the deceased frequently and they used to go out in a TVS 50vehicle frequently. The accused also used to talk with P.W.7, wifeof the deceased. P.W.7 used to talk with him considering him as abrother. The accused frequently used to state to P.W.7 that thedeceased was a drunkard and he was always having beard. P.W.7 wentto a temple at Palladam Road and at that time, the accused offered tohelp her as she was going alone, for that, P.W.7 refused to get anyhelp from the accused. On another occasion while P.W.7 was returningalone from a temple, the accused called her to come along with him inhis vehicle for that P.W.7 refused. The accused induced her to comealong with him and also threatened her that as long as her husband,beardman was alive, she would behave like this.(ii) On 19.06.2002 at 5.15 p.m., the deceased left the house andthereafter not returned to the house. On the same day at 8.30 p.m.,the accused came to the house of P.W.7 and informed her that herhusband, the deceased, was sitting along with another lady in a busproceeding to Pudukottai. At that time also, the accused called herto come along with him. But P.W.7 refused.(iii) P.Ws.5 and 6, who are also the residents of Tiruppur,stated that on 19.06.2002 at 6 p.m. while they were talking with thedeceased sitting in front of P.W.5's house, the accused came there inthe TVS 50 bearing registration No.TN 39 D 5422 and took the deceasedin that vehicle. After an hour, the accused came again to the houseof P.W.5 and questioned him about the whereabouts of the deceased forthat, P.W.5 stated to him that as he only taken the deceased, how hecan put that question. The accused has not given any reply. https://hcservices.ecourts.gov.in/hcservices/ (iv) The accused also informed P.W.8, father of the deceased, ator about the same time to the effect that the deceased was waiting ina Pudukottai bus, for that, P.W.8 informed him that his son wouldcome back wherever he goes. It is stated by P.W.8 that thereafter,the accused informed P.W.8 over the phone that the deceased was foundhere and there. But the deceased not returned thereafter.(v) P.W.2, who was working as trackman in the railways, was onduty on the night of 19.06.2002. On 20.06.2002 at 2.30 a.m., he wasinspecting the track along with one Appunni and at that time, hefound a body at 447/22-24 Kms in the railway track with injuries.Thereafter, he came to Vanjipalayam "A" Cabin and gave a writtenmessage to P.W.1, Station Master of Tiruppur Railway Station. P.W.1,in turn, gave the information through Ex.P.1 to Pothanur Railwaypolice. (vi) P.W.14, the Sub Inspector of Pothanur Railway PoliceStation, received Ex.P.1 from P.W.1. He registered the case in CrimeNo.442 of 2002 for the offence under Section 174 Cr.P.C. Ex.P.9 isthe First Information Report.(vii) P.W.14 went to the scene of occurrence. He held inquest onthe dead body of the deceased. Ex.P.10 is the inquest report. Heprepared the Observation Mahazar, Ex.P.2 and the Rough Sketch,Ex.P.11. He recovered M.Os.1 to 4, bloodstained pieces of lungi,pair of chapels, black colour waist band and bloodstained piece ofshirt under Ex.P.3. He sent the body for post-mortem.(viii) The Doctor, P.W.11, conducted post-mortem on 20.06.2002 at3.30 p.m. He found the following injuries :Injuries :(1)Loss of scalp, both frontal, both parietal and occipitalbone with loss of brain tissue.(2)Abrasion 10 X 10 cm in left shoulder with fracture of lefthumerus with loss of lower 1/3rd of left forearm.(3)A lacerated wound 3 X 5 cm on the right elbow withfracture of lower 1/3rd of right humerus.(4)Fracture of sternum and all ribs chest cut off after theabdomen at the level of D5 vertebrae lung's, heart notfound.(5)Abdomen crushed only part of intestine seen, liver,kidney, spleen not seen bladder empty.(6)Lacerated injury 10 X 10 cm in the right knee withfracture of patella and lower 1/3rd of right femur.(7)Left leg severed just below the left knee and hanging dueto skin attachment only.The Doctor, P.W.11, opined that the deceased would appear to havedied due to head injury and crushing of chest-vital organ about 8 –12 hours prior to post-mortem. Ex.P.7 is the Post-Mortem Certificate. https://hcservices.ecourts.gov.in/hcservices/ (ix) P.W.15, Inspector of Pothanur Railway Police Station, tookup further investigation on 20.06.2002. P.W.9, who was a Councilor,stated that the accused appeared before her on 24.06.2002 at 12.00noon. The accused informed P.W.9 that he took the deceased on19.06.2002 at 7.00 p.m. in his two wheeler for consuming arrackthrough Vanjipalayam railway track. It is further stated by theaccused that he stopped the two wheeler and proceeded along with thedeceased in the railway track line and pushed the deceased in frontof the running train and the deceased died on sustaining injuries.The accused stated to P.W.9 that he was frightened as he would bebeaten by the police. P.W.9 informed the Pothanur Railway policeover the phone. Thereafter, she took the accused to Pothanur PoliceStation and produced the accused along with her report, Ex.P.4.(x) P.W.15, on production of the accused by P.W.9, arrested himon 24.06.2002 at 2.30 p.m. In pursuance of the admissible portion ofthe confession of the accused under Ex.P.5, he recovered M.O.5, TVS50 vehicle under Ex.P.6 in the presence of witnesses. He altered theoffence to one under Section 302 IPC and sent the Express FirstInformation Report to the Court. He examined P.Ws.5 to 10 and othersand the accused was remanded to judicial custody.(xi) P.W.16, Inspector of Police, Tiruppur North Police Station,took up further investigation and went to the scene. He examinedwitnesses, but not recorded separate statements as they have givensame statements as that of the statements made before P.W.14. On17.07.2002, he examined the Doctor, P.W.11, who has conducted post-mortem on the deceased. After examining the remaining witnesses andafter receiving post-mortem certificate, Ex.P.7, P.W.16 filed thecharge sheet against the accused for the offence under Section 302IPC on 10.10.2002.5. When the accused was questioned under Section 313 Cr.P.C. inrespect of the incriminating materials appearing against him throughthe evidence adduced by the prosecution, he has come forward with theversion of total denial. The accused has not chosen to examine anywitness on his side.6. Mr.D.Selvaraju, leaned counsel appearing for the appellant,vehemently contended that the prosecution has not proved its case byadducing clear and cogent circumstances implicating the accused. Itis pointed out by the learned counsel that as per the evidence of theDoctor, P.W.11, he has conducted post-mortem from 3.30 p.m. to 4.30p.m. on 20.06.2002 and the deceased could have died 8 to 12 houseprior to the time of post-mortem and therefore, the correct time ofthe occurrence could not have been fixed. It is contended that thelast seen theory, said to have been spoken by P.Ws.5 and 6, is itselfnot enough to implicate the accused. The learned counsel wouldcontend that P.Ws.5 and 6 stated that the accused took the deceasedat 6.00 p.m. on 19.06.2002 but no one seen the accused near therailway track with the deceased. The learned counsel would further https://hcservices.ecourts.gov.in/hcservices/ contend that the evidence of P.Ws.9 and 10 to speak about the allegedextra judicial confession given by the accused is also unreliable asP.W.9 is not closely known to the accused to repose confidence on herto give the extra-judicial confession. It is submitted that theprosecution has suppressed the report said to have been given byP.W.7, wife of the deceased, on 22.06.2002 and as such theprosecution has not come forward with true version. The learnedcounsel would submit that there are several missing links in thecircumstances put forward by the prosecution. 7. Per contra, Mr.N.R.Elango, learned Additional PublicProsecutor, contended that the prosecution has proved its case beyondreasonable doubt by adducing clear, clinching and incriminatingcircumstances against the accused. It is submitted that P.W.7, wifeof the deceased, clearly stated about the motive put forward by theprosecution to the effect that the accused was attempting to have anaffair with her and as such the accused wanted to eliminate thedeceased and thereby killed the deceased. It is submitted that P.W.7categorically stated that the deceased left the house on 19.06.2002at 5.15 p.m. and at 8.30 p.m., the accused came there and informedthat the deceased was sitting along with one lady in a bus proceedingto Pudukottai and made an attempt to induce P.W.7 to come along withhim. P.W.8, father of the deceased, also corroborated the version ofP.W.7. It is contended that the last seen theory spoken by P.Ws.5and 6 is quite clear and natural and both of them are independentwitnesses. It is submitted that both P.Ws.5 and 6 categoricallystated that the accused took the deceased at 6.00 p.m. on 19.06.2002in his two wheeler, namely, TVS 50. It is also further pointed outby the learned Additional Public Prosecutor that after an hour, theaccused came there and enquired about the whereabouts of the deceasedin spite of the fact that the deceased was taken by him and suchconduct of the accused shows his guilty mind.8. It is contended by the learned Additional Public Prosecutorthat according to the prosecution, the occurrence took placeintervening night between 19.06.2002 and 20.06.2002 and it isimpossible for the prosecution to fix the exact time in view of thefact that the case rests on the circumstantial evidence. It ispointed out that P.W.2, the trackman, found the body at 2.30 a.m. on20.06.2002 and as such the occurrence could have taken place before2.30 a.m. It is further submitted that the evidence of P.W.9 isquite clear to implicate the accused to the effect that the accusedappeared before her on 24.06.2002 and gave the extra-judicialconfession and she produced the accused before the Inspector ofPolice, P.W.15 and thereafter, P.W.15 arrested the accused. It iscontended that the evidence of P.W.9 is also corroborated by theevidence of P.Ws.10 and 15. The learned Additional Public Prosecutorwould further submit that the prosecution has not suppressed anyreport said to have been given by P.W.7, wife of the deceased,regarding the occurrence and even assuming, the report said to have https://hcservices.ecourts.gov.in/hcservices/ been given by P.W.7 to Tiruppur North Police on 22.06.2002 to theeffect of missing the deceased that itself would not affect the maincase of the prosecution. Therefore, it is contended that theprosecution has proved its case by adducing incriminatingcircumstances leading to the only interference of the guilt of theaccused.9. We have given our careful and anxious consideration to therival contentions put forward by either side and also thoroughlyscrutinized the circumstances put forward by the prosecution.10. The prosecution placed reliance on the followingcircumstances :(i) motive to the effect that the accused was attempting to havean affair with P.W.7, wife of the deceased, and as such he wanted toeliminate the deceased;(ii) last seen theory said to have spoken by P.Ws.5 to 7 as P.W.7has spoken about the deceased leaving the house at 5.15 p.m. on19.06.2002 and P.Ws.5 and 6 have spoken about the accused taking thedeceased at 6.00 p.m. in his TVS 50 vehicle.(iii) the extra-judicial confession said to have been given toP.W.9, Councilor, as spoken by P.Ws.9 and 10 and production of theaccused by them before P.W.15, the Inspector of Police.11. It is well settled that in a case rests on the circumstantialevidence, the circumstances from which the conclusion of guilt is tobe drawn should be fully proved and circumstances must be conclusivein nature to connect the accused with the crime.12. The prosecution case rests on the circumstantial evidence.The Hon'ble Apex Court in Krishnan V. State represented by Inspectorof Police reported in 2008 (4) Supreme 25 reiterated the tests to besatisfied in respect of circumstantial evidence and held as follows: “This Court in a series of decisions has consistentlyheld that when a case rests upon circumstantial evidence,such evidence must satisfy the following tests :-i.the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmlyestablished ;ii.those circumstances should be of definite tendencyunerringly pointing towards guilt of the accused ;iii.the circumstances, taken cumulatively, should form achain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else ; and https://hcservices.ecourts.gov.in/hcservices/ iv.the circumstantial evidence in order to sustainconviction must be complete and incapable of explanationof any other hypothesis than that of the guilt of theaccused and such evidence should not only be consistentwith the guilt of the accused but should be inconsistentwith his innocence. (See Gambhir V. State ofMaharashtra AIR 1982 SC 1157."13. Now let us scrutinize and analyse the circumstances putforward by the prosecution, as stated above, in the light of theabove well settled principle of law laid down by the Hon'ble ApexCourt in respect of the circumstantial evidence.14.1. The first and foremost circumstance relied on by theprosecution is the motive put forward against the accused. It is tobe seen that P.W.7, wife of the deceased, has spoken about thealleged motive to the effect that the accused made attempts to haveillicit affair with her. P.W.7 has categorically stated that theaccused used to visit her house frequently as the accused and thedeceased were friends and using such acquaintance, the accused usedto state to P.W.7 that her husband, the deceased, was a drunkard andhe was always found with beard. It is the further version of P.W.7that while she was proceeding to a temple, the accused offered tohelp her, but she refused and on another occasion, while she wasreturning alone from a temple, the accused asked her to come alongwith him in his two wheeler and such request of the accused was alsonot accepted by P.W.7. Added to this version of P.W.7, it is furtherstated by her that the accused also used to behave with her in anindecent manner and inducing her to come along with him separatelyand went to the extent of stating that she would refuse like this aslong as the beardman (deceased) was alive and threatened her. P.W.8,father of the deceased, also stated that he has seen the accusedtalking with P.W.7. It is pertinent to be noted that P.W.7 fairlystated in the chief examination itself that she has not informedabout the misbehaviour of the accused to anyone. It is quite naturalfor any woman like P.W.7 not to disclose such unpleasant and indecentbehaviour of a male person openly to anyone. The version of P.W.7 isquite clear and natural and her evidence in respect of motive is notshattered by the defence during the course of cross-examination. Itis also pertinent to be noted that even assuming if not admittingthat the prosecution failed to prove the motive that itself is notfatal to the prosecution case, if the other incriminatingcircumstances are clear and cogent leading to the only inference ofthe guilt of the accused. 14.2. The Hon'ble Apex Court in Ganesh Lal V. State ofMaharashtra reported in 1992 Cri.L.J. 1545 by placing reliance on anearlier decision in Atley V. State of U.P. (AIR 1955 SC 807), whereinit was held that where there is clear evidence that the person hascommitted the offence, it is immaterial where no motive forcommission of the crime has been shown, has held as follows : https://hcservices.ecourts.gov.in/hcservices/ "... even in the case of circumstantial evidence,absence of motive which may be one of the strongest linksto connect the chain would not necessarily become fatalprovided the other circumstances would complete the chainand connect the accused with the commission of the offence,leaving no room for reasonable doubt, even from the provedcircumstances."14.3. The next clinching and incriminating circumstances putforward by the prosecution is the last seen theory, said to have beenspoken by P.Ws.5, 6 and 7. It is the categorical version of P.W.7,wife of the deceased, that the deceased left the house on 19.06.2002at 5.15 p.m. and thereafter, not returned back to the house. P.Ws.5and 6 categorically stated that while they were sitting in front ofthe house of P.W.5 and chatting with the deceased on 19.06.2002 at6.00 p.m., the accused came there in his two wheeler TVS 50 bearingregistration No.TN 39 D 5422 and took the deceased in his bike andthereafter, the deceased not returned. Added to the above saidversions of P.Ws.5 and 6, it is pertinent to be noted that theaccused said to have again met P.W.5 one hour thereafter and askedabout the whereabouts of the deceased in spite of the fact that hehad taken the deceased at 6.00 p.m. It is relevant to note that theevidence of P.Ws.5 to 7 in respect of the last seen theory is not atall shattered by the defence during the course of cross-examination.The undisputed fact remains that P.Ws.5 and 6 are independentwitnesses and there is absolutely no animosity for them to implicatethe accused falsely. It is also pertinent to be noted that it is thecategorical version of P.Ws.5 and 6 that the accused took thedeceased in his two wheeler TVS 50 bearing registration No.TN 39 D5422 and the said vehicle, M.O.5, was also recovered in pursuance ofthe admissible portion of the accused under Ex.P.5. Therefore, we areof the considered view that the last seen theory coupled with therecovery of the two wheeler TVS 50 on the basis of the disclosurestatement made by the accused is one of the clinching circumstancesagainst the accused and the evidence of P.Ws.5 to 7 are not at allshattered by the defence during their cross-examination.14.4. Yet another circumstance put forward by the prosecution isthe extra-judicial confession said to have been made by the accusedto P.W.9, Councilor. It is pertinent to be noted that it is notdisputed by the defence that P.W.9 was unknown person to the accused.The fact remains that after the said extra-judicial confession wasmade by the accused, only P.W.9 took the accused and produced himbefore the Inspector of Police, P.W.15 and thereafter, P.W.15arrested the accused. This version of P.W.9 is also corroborated bythe version of P.W.10. It is pertinent to be noted that P.W.10 hasfurther spoken about the recovery of the two wheeler TVS 50 inpursuance of the admissible portion of the confession of the accusedunder Ex.P.5. Therefore, there is absolutely no reason or any groundmade out for rejecting the evidence of P.Ws.9 and 10 coupled with theevidence of P.W.15 in respect of the extra-judicial confession made https://hcservices.ecourts.gov.in/hcservices/ by the accused to P.W.9 and thereafter arrest and recovery of twowheeler, TVS 50, was effected in pursuance of the admissible portionof the confession of the accused.14.5. Apart from the above said circumstances, this Court alsocannot brush aside the conduct of the accused. As already pointedout, P.Ws.7 and 8 categorically stated that the accused came to theirhouse at 8.30 p.m. and informed them that the deceased was seen witha lady in a bus proceeding to Pudukottai and further the accusedinformed P.W.8, father of the deceased, over the phone stating thatthe deceased was found here and there. Added to these versions ofP.Ws.7 and 8, namely, wife and father of the deceased, the version ofP.W.5 is also relevant to be considered in respect of the conduct ofthe accused. It is the categorical version of P.W.5 that only theaccused took the deceased in his two wheeler at 6.00 p.m. while hewas chatting with P.W.6 and the deceased and thereafter, the accusedagain came to his house alone after one hour and asked him about thewhereabouts of the deceased and such conduct of the accused clearlydemonstrates the guilty mind of the accused.14.6. It is well settled by the Hon'ble Apex Court that theconduct of the accused would be relevant under Section 8 of theEvidence Act. The Hon'ble Apex Court has held in Anant ChintamanLagu V. The State of Bombay reported in AIR 1960 SC 500 that thepiece of conduct can be held to be incriminatory which has noreasonable explanation except on the hypothesis that he is guilty.Conduct which destroys the presumption of innocence can alone beconsidered as material. 15. As far as the version of the learned counsel for theappellant regarding the suppression of the report said to have beengiven by P.W.7, wife of the deceased, to Tiruppur North PoliceStation, we are of the considered view that non-production of suchreport is not fatal to the prosecution case. It is pertinent to benoted that P.W.7 in her chief examination stated that she has given areport to the police on 22.06.2002 in respect of missing of herhusband, but the fact remains that the defence during the course ofcross-examination suggested that P.W.7 has not given any report tothe police and she has come forward with false version.16. We are also not able to accept the contention of the learnedcounsel that the occurrence could not have been taken place in thetime as alleged by the prosecution on the basis of the medicalevidence as the Doctor stated that the deceased could have died 8-12hours prior to the post-mortem. It is submitted that according toP.W.11, the Doctor, post-mortem was conducted at 3.30 p.m. on20.06.2002 and it is also submitted that the occurrence, according tothe prosecution took place during the night time between 19.06.2002and 20.06.2002 and as such the prosecution has not fixed the time ofthe occurrence. We are not at all impressed in the above saidcontention of the learned counsel appearing for the appellant. It is https://hcservices.ecourts.gov.in/hcservices/ not possible for the Doctor to give a exact time of death. It isrelevant to refer the decision of the Hon'ble Apex Court in PattipatiVenkaiah V. State of A.P. reported in (1985) 4 SCC 80 wherein, theHon'ble Apex Court has held as follows :"Medical science is not yet so perfect as to determinethe exact time of death nor can the same be determined in acomputerised or mathematical fashion so as to be accurateto the last second."17. In view of the above said reasons, we are of the consideredview that the prosecution has put forward clear, cogent andincriminating circumstances without leaving any missing linksunerringly pointing to the guilt of the accuse.For the aforesaid reasons, the appeal is liable to be dismissedand accordingly, dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GgTo1. The Additional Sessions Judge, Fast Track Court No.IV, Coimbatore at Trippur.2. - do – thro" The Principal Sessions Judge, Coimbatore.3. The Judicial Magistrate No.I, Tiruppur.4. - do – thro" the Chief Judicial Magistrate, Coimbatore.5. The District Collector, Coimbatore District.6. The Director General of Police, Chennai.7. The Superintendent, Central Prison, Coimbatore.8. The Inspector of Police, Anupperpalayam Police Station, Tiruppur, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/

9. The Public Prosecutor, High Court, Madras.+ 1 CC To Mr.C.S.Saravanan, Advocate SR NO.33225 Judgment inCrl.A.No.954 of 2006KA {CO}TP/17.7.08