Mani v. State of Tamil Nadu

Judgment

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 443 of 2006. From the Judgment and final Order dated 17.4.2003 of the High Court of Judicature at Madras in Crl. A. No. 589/2000. Prasanthi Prasad for the Appellant. . [SIRPURKAR, J.] V. Krishnamoorthy, V.G. Pragasam and S. Prabu A Ramasubramanian for the Respondent. The Judgment of the Court wa_s delivered by V.S. SIRPURKAR, J.

1This appeal challenges the judgment of the High Court whereby the conviction of the B appellant- Mani for an offence under Section 302 Indian Penal Code, 1860 read with Section 34 as also the conviction under Section 201 l.P.C. have been confirmed by the High Court.

2Originally, there were two accused persons, however, accused No.2 Moyyasamy has been acquitted by the High C Court. State has not challenged the acquittal of ace.used Moyyasamy. We have to therefore consider only whether the · High Court was justified in confirming the conviction of the appellant for the offences stated above. · 3. The prosecution case was that the two accused persons D had murdered one· deceased Sivakumar who had strained relationship with Accused No. 2 Moyyasamy. The relationship was strained on account of the cattle belonging to the father of the deceased namely P.W.1 Arunachalam having grazed in the field belonging to accused Moyyasamy. in fact, both P.W.1 Arunachalam and accused Moyyasamy are the real brothers while deceased Sivakumar andP. W.2Amulnathan were the sons of Arunachalam. On account of the cattle trespass into the field of A.2 Moyyasamy, there was a quarrel. This trespass incident, seems to have taken place on 19.9.1996: Sin.ce there was an F altercation between accused Moyyasamy and his brother in which accused Moyyasamy had stabbed on the neck of Arunachalam, he (Arunachalam) had reported the matter to the polic;e.

4The occurrence in question, according to the prosecution, took place about two months thereafter on G 24.11.1996. It seems that according to the prosecution, P.W.1 Arunachalam and deceased Sivakumar were chatting with the family members when accused no~ 1- Mani came there and had a cup of coffee with P. W.1 Arunachalam and his family. Mani is said to have taken Sivakumar to his house. This was at about H A 6.00 p.m .. Since Shiv Kumar did not tum up till 10.00 p.m., P.W.1 went to the house of the appellant Marri and found that blood was oozing from the house through the water passage underneath the door frame. The house was found locked. P.W.1 Arunachalam therefore,.came back and he was informed by B • PW.2 Amulnathan that Sivakumarwas found in the company of appellant Mani and acquitted accused Moyyasamy at about 7.00 p.m. Though P.W.1 Arunachalam was disturbed on account of this, he did nothing andonty oh ttie next morning at 6'0 clock he went to the house of the accused and found trail of blood near c the house of Mani and ~·ltin:i,ately from that.he !Faced out the body_ of the d~ceasedwhich wef s lying'qow~ Jn tp.e nearby field belonging to ... one P.W.5 .Chinnammal. It is t.hen that P.W..1 Arunachalam,rushed to Yerca~dpolicestation and gave a complaint. The case was regist~red under Section 302 l.P.C. ·

5DuringJnvestigation which was done on 25.11.1996 the house of appellant.which was lockec_j was qroken ope[! by the police and the house was se.arched. Some bJood stained materi?ls like cement flooring, human:ha.ir and blood stained brass lock were .seized ,by the investigating officer. It was found in the post-mortem.examination that the deceased had suffered six injuries on various parts of the body including·the·n~ck and thathe.had died due to the inju~ies to ttie vital organs;(lnd also du~ tq the ,hemorrhage. The seized material ,was sent for the cherni~?lan~lysis.

6The investigating officer came tb know. ~ha.t accused appe·llant tiad surrendered before t~e C:ourt. He, therefore, filed an application tor the police custody on 28.11.1996 and ultimately obtained the same on 06.12.'1996. The prosecution further contended that on the same day on the basis of the discovery statement made by the accused appellant, ·blood stained clothes of the accused namely M.Os 15-1'7 and blood stained Koduval namely M.O. 1 Bwere recovered from theplace pointed out by the accused. The second accused (Moyyasamy) was arresteq on 08.12.1996 and.hisblood stained clothes were ·' alsore.G.overed. On the basis of the investigation, chargtfstieetu 1 t . . MANI v. STATE Of, TAMIL NADU [SIRPURKAR, J]. came to be filed. 235 . · 7, As m~.~y as .16witnesse~were'exa·mined. The accused·· had denit:d th.eir guilt.

Tb.e TriaLCourt· concli!lded that the· .: prosecutior:i established its case beydn{! 'reasonable doubt and ·· ·· convicted both. the .accused of the offences as ·aforesaid: :.····B · .. · 8. Our'ir'rgthe appeal.the High Court came to the conclusior.i .. that there was no evidetlt:e\vbrt_h tre n,artie again:s(a:s:cu~ed . no,'2' Mb)'yasamy: Tfie'H:igh Co6rt fudher, helr;l that tl;ie,rnotive .·. ! : ! t_ ' ' 4 attdbtited by ~~~·prci~etyfior\ _lo 1M,oyyal?~'.11Y:?'·~s ri9.t ~stf}?lis,~ed ,. · Thus;· t™r Hig'fi _Cdurt· ~el.9. or\lhe pasls .. of ,f~.e {cict t9~t)h~ c proset\.ttio:riJhad · n-of placed"any materla! Jq,;?hJ?r(ythat ,. subsequent to 19.9.1996, any incidennook· pf ace so as to prox!ide,,(119tiy~.fo~!-l'.l·YrdefGf.the,Qe~eeised:!The·H.igh,Cdurt>also help th.i:lt the.re.w~s.rio $V!d~nce; led .iri to: sbow:that'appellanh·· Maf1Lahd accu'sed'nq .. 2,Moyyasamy,:were the clese associateisi:> and tnaJ acc.vsed .M6yyas~m.~:had:?et-upJ/'Je;present,appella'f1f.

0 to c~mhji(tbe rT)Urder: ot.tn.e .• ~i;eaSed· Tht.is, the. High Courtcs ' held th~f(tf ere lf)la.s, nothing to jink th f?·accused Moyyasamywith· -: · :r the'.crim'e .partic'ularly becs:ius,e there c0uld. be. no moiiv.e' :,; sugg'e,~l,~c{t~, i(Jtie Jjigh Q~o'u/t ~lso;disbelj§ve,o the discovery, Y1i matje'by ac9~sed Moyyasamy,of;the l;>,lq9d stai,rlecl.clothes·on•· E the lfrounWih'at the. di~_cove,ry Vyal?;be!§lted,[orJhese reasons.,,, , : accusediMoy,yasainy '4'aS acquitted. HolA(eVE)fl the.High Court;;::-:; , .. C: '. disml~~,ed t.he appeal in so f~r .as ,,tJ;le, p~e:s€lnt appetlant is .,, " concerned: : .. ~: ·2h~-llenging the 'judgm~hf.~f thed'iigh' Court, ie~med •.• :F'. ~ counsel points.out that firstly.there coi.Ild be!no m6tfve whatsoever/• · ' on th'e part. of the appellant.

Outatrention was in'i1itei:l to thefindin'g ... that there was· no thick relationship between the two accused' . persons SQ that the ·present appeHant cduld take't1p the cause of the acquitted accused,M6yy<lsamyic:tnd go to the extent of i:e, ' murdering the deceased. It is further pointed·ouJthat if at all, ~i,-~'::t ~·;-\··:, ·-;.·:~·~ ... ::~; j;:·>" ·.: there was any·motrye, .1t coulq be,Qn"jhe,p(3rt of the acq1,11tteq "i· accused since it'~~.s-_he·~~p.·'~~~J~;yghi on) 9 t 1 Q96 with._the. .. , ;,; fathe_r of th~. d~ce~se.~. a ~~l yv~~ .~ (!q~vp.?, ?fas rep9rtecj .aga1D.Sh:~ by P.W.1 Arun~c,nal_atn.:. t~~(pe,~:Ro~ns~L~a~.ia!_.p,~ir:J~,.t9 .. R9inJ ·H·:c f2008] 1 S.C.R. A out that the appellant had nothing to do either in the first incident '-- of the cattle straying into the complainant's field or the subsequent altercation between Moyyasamy and P. W. 1 Arunachalam wherein P. W.1 Arunachalam was allegedly injured by accused Moyyasamy.

Learned counsel further pointed out B that the theory of last seen together if at all was to be believed, then it applied with equal force to the second accused also. At any rate, the theory was unworkable as the exact time of death was not established by the medical evidence. Learned counsel argued that at any rate, this could not be a clinching. circumstance c against the appellant particularly when the second accused was acquitted by the High Court. 10. The counsel further urged that the High Court erred in relying upon the discovery evidence as admittedly the so called discovered articles were found from the open ground barely 300 D feet away from the body and that it was nothing but a farce. · Learned counsel pointed out that the investigating officer was bound to know about the so called blood stained clothes (Koduval) as those articles were lying barely within three hundred feet from the body.

Lastly, learned counsel urged that the E evidence of discovery· could not be held to be sufficient and could not be relied upon to convict the appellant. Learned counsel also urged that the prosecution had miserably failed to establish that the alleged house which was visited by P. W.1 Arunachalam at about 10 O'clock at night actually belonged to F and was possessed by the appellant. The learned counsel also pointed out that though P. W.1 Arunachalam had found the body at night in the field of P.W.5, Chinnamal he did not even bother to report the matter to the police and in fact the First Information Report was hopelessly delayed. He pointed out that this delay G was also not considered by the High ·court. 11.

As against this, learned senior counsel appearing for the State supported the prosecution and tried to point out that though this was a case of circumstantial evidence, the prosecution has not only established each circumstance but had H also discharged its burden to show that the circumstances [SIRPURl\<AR, J.] ~f pointed out only to the guilt of the appellant and also suggested A that he alone and nobody else was responsible for the murder. 1.2. We have closely examined the evidence as also the original records of the matter and we are .convinced that the prosecution has not been able to establish the guilt of the B appellant beyond reasonable doubt and that the High Court as. well as the Trial Court have erred in convicting the accused. Our -\ reasons are as follows : . 13. There can be no dispute that deceased Sivakumar had died homicidal death. The question .is whether the c prosecution has been able to connectthe present appellant with· the crime?

The case undoubtedly depends upon circumstantial evidence. It will be therefore our task to examine all the circumstances relied upon by the courts below. 14. Though the Trial Court has discussed nine D circumstances, the High Court has not discussed are the ~ circumstances in seriatum. 15. The firsfcircumstance held by the High Court against the appellant is that the Koduval (M.0.18) was found with sticking hair and It la proved that the scalp hair of the deceased was E found similar to the hair sticking to the Koduval and that M.Os 15, 1E~ and 17 were the clothes found with strained blood. In our opinion, this circumstance by itself Is of no consequence unless those material objects are connected with appellant. 16. An Interesting statement was made by the High Court suggesting tha' if the appellant took the deceased at 6.00 p.m. on 24.11.1996 to his house where the deceased was done away with, the burden shifted on the first accused to show how the de~ased died In his house.

In our opinion, this la not the correct position of law. In f?rder to hold this circumatar,ce, the High Court. · has recorded the finding that the house belonged to the present appellant. The appellaiit hact very clearly stated In his examination under Section 313 Cr.P.C. that the house did not belong to his father and that it was lying vacant and nobody had occupied it. In our opinion, atleast from the evidence on record, it cannot be H A· concluded that tHe house belonged to the a·ppellant. There is.ho · evidence worth the nahie feiad by the prosecution to suggest the exclusive ownership or the possession of the house belonged to the appellant. B.oth the courts have proceeded on the presumption that the house was owned or possessed exclusively -B by the·appellant. Much could have been done to establish its ownership by filing the revenue record of that house. No such documentary evidence was collected by the prosecution.

The High court has not _qiscLJssed this aspect of exclusive ownership and poss~ssion at all~and has proceeded on the presumption c tHat tbe hou~e belopg.~d'to f;lnd was possessed by th!=! a_ppella,nt herein. ·. · 17. The Panch witness P.W.6- Ganesan, though had referred to the said house as the house of' the appellant, has clearly admitted in his cross-examination that he did not know D as to in whose name stood the said house. It is very significant to note that he has lastly given the admission to the effect "to say that (blood stained) that house is not Mani's house and it was built by Mani's father, cannot be objected". This witness was a Village Administrative Officer through whom the E investigating officer could have easily obtaineci the records of this house. Unfortunately, that was not done.' 18. The only other evidence in this .behalf is that of F?W· 14 Karunakaran who was_ one of the Investigating Officer.

He hcts never asserted that the concerned house \l\(CI$ appellant's house F though he, in his examlnation-in-chief refer~ed to that house as Mani's house. He had to admit in his cross examination that he 'did not interrogate any other resid~nts residing near Andiammal's house.'He also had admitted that he had never questioned the Village Administrative Officer as to in whos_e G n~me was the said house. Though this witness coll)mOf1ly referred to that house·as Mani's house. it is difficult to l;iold that the prosecution had establi_shed the exclusive ownf?rship and possession of that hquse as against the appellant.. 19 The High Court has undoubtedly referred to the written MANI v. STATE OF TAMIL NADU~:" [SIRPURKAR, J] · .. statement.Ji led by the,,accused under Section 313 Cr~P.C. out ·A . has chosen,not:to:discuss the matter further. It is ther'E!fore difficult -to hold that the said house where allegedly thehfood stalnswere found belonged to the appellant. 20.

Same and similar is the story rega.rding the alleged · discovery. Both the vyitnesses namely'P.W: 8 Pilip Kumar and· B · P.VV.~ Loganath}1r;i t)aq turned. hostil~. Th~y c,om.pl13t~ly disowhe.cfthe'ptoseci..Jtion case that the appellant was examined by th.e. I nspect,bri3ijp.qurirg',that ex~·m0~fio.Q .. ',¥~n'i ~as enq'0ired and he' g~v,~ ~bnfessi.~r1al:statem~,~.t.~nd tl;l,~J .he would, 1s~ow C the'hidden clothes which he worn at theti01e of the incident and . also ttie k6ciuva1 which was"ui~cf ~t ih~:Hme of the incici~nt. ·they only ad::~pted that' they. had signe.d.lhe said statement. Now·, wtienwe consider the evidence regartjing the discoyery, a V~rY iit,iportant circumstance was missed by both the,~r)al.Cq,~rt ,.. . . as well as oy the High 'Court about the place where the articles '·D · ·were found. P.Vv.

15 Govindan who was the Investigating Officer in respect of th.is discovery deposed that the accused Mani had made. vplun.a,.Y confess,io'n' statement which he had recorded in · presen.ce of the two witnessE!i;.namelyP,W. 8- Dilip KJmar and 'l.\5ganf!th~r(VVe are aJ.re~dy $een that 'both the witnesse.s had E complet~ly_disowned the stouts There.is no cross examination worth t~e ~,ame to these wiJne~sE!S py the pyblic prosecutor. Both these. witnesses were .chance witn.essep, they being the regular visitors to the police 'station,. and it appears that they Were rrierely used by the investigating agency. In fact there is . no' explanation on hbw Jhese two witness.es reached +fie police station at all. P.W. 15 'Govinda·n did assert that. he recovered :~rie bl'o6d stained rose colour'full sleeve sh.irt blood stained . greer coloure'd sW,eater, blo.od stained lµngl h~~lrig '.]'28n red and black .. stripes and,qne)lood stain13cl kociuval ;,J'.h human " ,J.-J_ u hair produced by the accused at 11.30 a m. near :he sloppy . rock on !he way to Chinnammal Coffee Estate in Salaipara village.

Accordingly, the witness asserts th at he r.ecovered M. Os 15, 16, 17 and 18 under ExhibiFP:26 Mahazar. Now. , unfortunately, the High Court has missed a very important of [2008] 1 S,C.R. A evidence in his cross examination where the witness very specifical.ly admitted that the material objects said to have been produced by Accused No. 1 and Accused No. 2 were recovered about 300 feet away from the dead body of Sivakumar. Now, it is nobody's case that at the time the discovery was made by e accused no. 1, accused no. 2 also made certain discoveries. Therefore, the witness was not certain as to who made the discovery. This is apart from the fact that discovery admittedly · was made from 300 feet away from the dead body .of Sivakumar and after Sivakumar's body was inspected by P.W.14 as early c as on 25.11.1996.

It would be impossible to believe that the . inspector did not search the nearby Spots and that all the articles would remain in open unguarded till 6th December, 1996 when the discovery had allegedly been made. This was nothing but a farce of discovery and could never have been accepted . 0 particularly because all the discovered articles w~re lying bare· . open barely 300 feet away from the body of ttie deceased Sivakumar. Even this witness had to admit that he never enquired as to in whose name the house of Mani stand. He claims that P.W.14.had.done the same whereas P.W.14 is completely silent E about such investigation. It is, therefore, obvious this discovery could have never been accepted by both the courts below & both the court have completely ignored this vital admission.

It need not be stated that where the discovery of the relevant articles have been made from the open ground though under the bush, that too after more than 1 O days of the Incident, such discovery F would be without any credence. It does not stand to any reasons that the concerned Investigating officer did not even bother to look hither and thither when the dead body was found. We are, therefore, not prepared to accept such kind of farcical discovery which has been relied by the courts below without even taking G Into consideration the vital facts which we have shown above. 21. The discovery Is a weak kind of evidence and cannot be wholly relied upon on and conviction In such a serious matter cannot be based upon the discovery. Once the discovery fall•, 'H there would be llterally nothing which would 1upport the [SIRPURKAR, J.] prosecution case.

We have already held that the prosecution A has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. The.re is one other very relevant factor ignored by both the courts that the prosecution never made any B attempts to prove that the Clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, th.ere is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In ou'r opinion, there was no motive whatsoever much less entertainable by the pcesent appellant.

He had nothing to do D with the straying cattle nor was he a party to subsequent altercation between P.W.1 Arunachalam and the accused No. 2 Moyyasamy .. Lastly, there.is nothing on record to show that he was a henchman set up to take revenge by accused no. 2 Moyyasamy and he was set up by the accused no. 1 to revenge. E We also did not understand that if there was no motive for Moyyasamy, how could there be any motive entertainable by the appellant. Therefore, even for that circumstance has to go. 22. Even if we accept that the Koduval and the alleged ~ clothes, i.e. the material object nos. 15-18 had the blood stains F that does not connect the appellant with the crime. 23. The only other circumstance left with is that Mani called Sivakumar at 6 O'clock and took him away in the absence of any ot~er clinching circumstances, this circumstance by itself cannot lead to the only conclusion that Mani murdered Sivakumar. Therefore, we have to ignore that circumstance. 24.

Lastly, the Trial Court has obviously committed an error in suggesting that the appellant was absconding and that he was surrendered before the Court on 06.12.1996. It is H A mentioned in subpara 6 of the judgment of the Trial Court of para 28. We are afraid this is a factual mistake because it has come in the ~vidence of the prosecution witnesses that the accused had surrendered before the Magistrate much earlier to that, i.e. on the very next day or so and that it took the B investigating officer almost 10 days to obtain his custody. That has clearly come in the evidence of P.W. 14. 25. We are also not impressed by the evidence of P.W.1 Arunachalam who had though found the corpse at night or atleast had realized that something unusual had happened, did not C bother to go till next day at 10 O'clock for reporting the matter. We cannot ignore the evidence of P.W.5 Chinamal in whose field the body was found. She had specifically claimed that this fact was known to P.W. 1 Arunachalam.

Having seen all the evidence and having considered both the judgments very D carefully, we are of the clear opinion that this cannot be a case where the prosecution has proved the guilt of the accused beyond reasonable doubts. We would th3refore accept the plea of the accused raised by the defence counsel that this is clearly a case for benetit cf doubt. We would therefore choose to grant E the benefit of doubt to the accused holding that the prosecution has not been able to prove its case beyond the reasonable doubt. We therefore, allow the appeal. Accordingly the appeal is allowed. Impugned Judgments and conviction are set aside. The accused be set to liberty forthwith unless required in F any other case. K.K.T. Appeal allowed. i