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2012 Supreme(Mad) 3252
High Court of Judicature at Madras
K.N. BASHA & P. DEVADASS
Kavitha & Others
Versus
The State by, The Inspector of Police, Coimbatore District
Crl.A.Nos.608 of 2010 & 643 of 2010 and 306 & 837 of 2011
Decided on : 26-07-2012
For the Appellants:N.Manokaran, G.Saravanakumar, R.Karthikeyan for K.Govindarajan, V.Bharathidasan for S.Dhanasekaran, Advocates.
For the Respondent: V.M.R.Rajendran, Addl. Public Prosecutor.
In cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the court on its guard to scrutinise the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof.
Headnote:
CRIMINAL APPEAL - SECTION 302 IPC - [A1 TO A5] - [DECEASED SELVARAJ] - [EXTRA JUDICIAL CONFESSION] - [SECTION 27 EVIDENCE ACT] - [RECOVERY EVIDENCE] - [CIRCUMSTANTIAL EVIDENCE] - [MOTIVE] - [ENQUIRY ABOUT DECEASED] - [EXTRA JUDICIAL CONFESSION TO P.W.8] - [SECTION 27 EVIDENCE ACT RECOVERY] - [ANALYSIS OF CIRCUMSTANCES] - [CONCLUSION] - [FINDINGS OF THE COURT] - [ISSUES] - [RATIO DECIDENDI] - [FINAL DECISION] - [MAIN LEGAL POINT]
Fact of the Case:
On 23.9.2008, at about 5 p.m., near the Cooliepalayam Railway gate, Tirupur, the dead body of Selvaraj, husband of A1, was found with multiple cut injuries on his vital organs. The autopsy examination of P.W.16 Dr.Senthilkumar revealed that his death is homicidal. Thus, Selvaraj has been murdered.
Finding of the Court:
Thus, none of the circumstances projected by the prosecution has been established. They do not form a complete chain linking the accused with the charges framed as against them. The circumstances woven in this case are not connecting, but disconnecting with one another. Excluding the so called circumstances which are totally innocuous or suspicious from our zone of consideration, the charges remain sans evidence.
Issues: 1. Whether the motive attributed as against the accused for the death of the deceased is established? 2. Whether the enquiry about the deceased by A2 to P.W.5 links A2 with the death of the deceased? 3. Whether the extra-judicial confession of A2 to P.W.8 is admissible? 4. Whether the recovery evidence pressed into service is reliable?
Ratio Decidendi: 1. In the facts and circumstances, we cannot dismiss the arguments of the learned counsel for the appellants that no reliance could be placed on the evidence of P.W.7 as devoid of any merit. 2. In a case based on circumstantial evidence, each and every circumstance will not form part of the chain of circumstances woven to link the accused with the case. 3. Extra Judicial Confession is a good piece of circumstantial evidence since it emanates from the accused himself as to the commission of the offence. 4. In this case, during his examination under Section 313 Cr.P.C. when A2 was questioned with reference to Ex.P6 extra-judicial confession he had denied it. So, he had retracted it. 5. Thus, none of the circumstances projected by the prosecution has been established. They do not form a complete chain linking the accused with the charges framed as against them.
Final Decision: The Criminal Appeals are allowed. The appellants are acquitted from all the charges. The conviction recorded and the sentences imposed upon them by the learned II Additional Sessions Judge, (formerly Fast Track Court No.V), Tirupur in S.C.No.8 of 2010 on 28/08/2010 are set aside. The appellants shall be released forthwith, if their further custody is no longer required in connection with any other case. Fine amount, if already paid shall be refunded to them.
P.DEVADASS, J.
THE APPEALS: Since all these Criminal Appeals arises out of the same Judgment, they were heard together and are being disposed of by this common Judgment.
THE APPELLANTS:
2. In these appeals, A1 to A5, in S.C.No.8 of 2010, VII Additional Sessions Judge, (formerly Fast Track Court No.V), Tirupur are challenging their conviction and sentences.
CONVICITION AND SENTENCES:
3. On 28.8.2010, they were convicted and sentenced as detailed below: All the sentences were directed to run concurrently.
PROSECUTION CASE:
4. (i) A1 Kavitha is wife of deceased Selvaraj. P.W.7, Sumathi is his brother's wife. A1's
neighbour is A2 Siva @ Sivachandiran. They are residing in Bharathi Nagar 3rd Street, Thottipalayam, Tirupur. They are neighbours. A3 to A5 viz., Muthukumar, Murugan @ Balamurugan and Raja are acquaintance of A2.
(ii) Illegal intimacy developed between A1 and A2. On a day, in his house, the deceased saw them in a compromising position. The deceased attempted to cut A1. He had reprimanded A2. This was witnessed by P.W.7.
(iii) P.W.5, Periyasamy, a neighbour of the deceased, is having his shop in Kongu Main Road, Tirupur. On 23.9.2008, at about 4 p.m., in P.W.5's shop, the deceased took tea and left. Within 10 minutes, A2 came and enquired about the deceased. P.W.5 replied him that he had already left his shop. (iv) At about 5 p.m., A1 telephoned P.W.1, Palanisamy, their relative that her husband did not return home. P.W.1 went in search of him. Near the Cooliepalayam Railway gate, P.W.1 seen the dead body of the deceased. At a little distance, his dhoti, chappals, Motor Bike were found. At about 7.30 p.m., at the Perumanallur Police Station, P.W.1 gave Ex.P.1, complaint to P.W.14, Manoharan, Head Constable. He registered this case in Cr.No.448 of 2008 under Section 302 IPC. He sent the Express FIR, Ex.P.20, through P.W.15, Ashokan, Constable, to the court and copies to P.W.18, Mohanraj, Inspector and to Superior Officers. (v) P.W.18 took up his investigation. Visited the scene place. In the presence of P.W.4, Rangasamy and Rajendran, Village Assistants, Neriperichal Village, prepared Ex.P.2, Observation Mahazar. Drew Ex.P.25, rough sketch. Examined P.Ws.1, 2 and 7 and other material witnesses and recorded their statements. Between 10 p.m. and 12 p.m., in the presence of Panchayathars, he conducted inquest over the dead body. Ex.P26 is his inquest report. He sent the dead body through P.W.17 Ramachandran, Head Constable with Ex.P.21 requisition to the Govt. Hospital, Tirupur to conduct post-mortem. From the scene place, P.W.18 recovered M.O.7, blood stained-sand, M.O.8, plain-sand, M.O.1, blood stained-dhoti, M.O.5, pair of chappals and M.O.6, TVS bike.
(vi) On 24.9.2008, at the said Hospital, P.W.16, Dr.Senthilkumar conducted postmortem on the dead body of Selvaraj and noticed the following injuries:-
(1) Injuries left hand: (a) Cut injury medial aspect left thumb 2 x 1 x 1 cm; (b) cut injury – palmar aspect of middle finger 1 x 1 x 0.5 cms (c) cut injury palmar region 2 x 1 x 1 cm.
(2) Injuries right hand: (a) cut injury -palmar region 7 x 0.5 x0.5 cms (b) cut injury palmar aspect thumb 1 x 1 x 1.
(3) Injury over neck : (a) cut injury right side neck below mandible size 7 x 4 x 2 cms deeper upto muscle level (b) cut injury left neck extending from 4 cm below left mandible, left sternomastoid muscle and left external jugular vein left carotid vessel intact 4 cms away from midline on right side size 15 x 7 x 5 cms edges are irregular in shape (c)Partial cut injury over trachea 2 x 1 x 1 cm.
(vii) P.W.16 opined that the deceased would appeared to have died of shock and hemorrhage due to multiple injuries. (viii) On 27.9.2008, at about 9 am, when P.W.8, Natraj, ward member, Thottipalayam Panchayat was in his office, A2 appeared before him. He confessed his illegal intimacy with A1 and on her advice, on 23.9.2008, at about 5 pm, he had killed the deceased. P.W.8 recorded it. Obtained his signature. He also
