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M. Silamban Vs. The State, rep.by Inspector of Police, Sivagangai District - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberCriminal Appeal (MD) No. 219 of 2014
Judge
AppellantM. Silamban
RespondentThe State, rep.by Inspector of Police, Sivagangai District
Excerpt:
.....concluded the investigation and filed report before the jurisdictional court on 29.07.2009. 5. the learned trial judge, after completing the procedure and considering the oral and documentary evidence let in, and upon hearing both sides, convicted and sentenced the accused as aforementioned, resulting in filing of the present appeal before this court. 6. the point that arises for consideration in this appeal is as to whether the judgment of conviction and sentence passed by the trial court is sustainable in law or not? 7. assailing the judgment of conviction and sentence passed by the trial court, the learned counsel for the appellant would submit that, in the cross examination of pw1, it is stated that the investigation officer came to the scene of occurrence at 1.30 p.m. and her left.....
Judgment:

(Prayer: Appeal filed under Section 374(2) Cr.P.C. to all this criminal appeal and set aside the judgment in S.C.No.37 of 2010, dated 26.04.2013 on the file of the learned Sessions Judge, Sivagangai.)

B. Gokuldas, J.

1. The appellant herein, who was tried by the learned Sessions Judge, Sivagangai, in S.C.No.37 of 2010, for charges under Section 376 r/w Section 511 and 302 IPC, was found guilty vide judgment, dated 26.04.2013, and sentenced to undergo rigorous imprisonment for 10 years and life imprisonment respectively, and the sentences imposed were ordered to run concurrently. Aggrieved by the said judgment of conviction and sentence passed by the trial court, the sole accused has preferred the present Criminal Appeal before this Court.

2. The case against the accused/appellant is that, on 13.01.2009 at about 8.30 a.m., when the deceased/Valli was taking bath in Poochiyenthal Kanmoi, the accused/Silamban went there with an intention to rape her. When he attempted so and the deceased reacted to prevent him, with an intention of murdering her, he assaulted her with an Aruval and when she resisted with the left hand, she sustained a cut injury on the said hand. Again, the accused cut her from left cheek to the middle of nose and once again from the left neck to the right side thereof, as a result, both trachea and esophagus got exposed. When the victim fell into the water, again, he assaulted her with the tip of Aruval on both the left and right back, as a result, the deceased/Valli died instantaneously on the spot. Accordingly, the accused/appellant was charged.

3. Before the trial court, in order to substantiate its case, the prosecution examined PWs-1 to 9, marked Exs.P1 to P10 and produced MOs1 to 12. On the side of the accused, neither any witness was examined nor any document marked.

4. The case of the prosecution, as unfolded by its witnesses, is as follows;-

i) PW1/Vellaiyammal is the mother of the deceased Valli. In her evidence, she deposed that on 13.01.2009, at about 7 a.m., she took the deceased/Valli to Poochiyenthal Kanmoi to take bath. PW1 told her daughter to wash her dresses in the Kanmoi water after taking bath, and that, in the meantime, she would work in her field next to the Kanmoi bund. Thereafter, PW1 went to the field and was attending the field work, at which time, on hearing the alarming voice of her daughter Valli, she rushed to the Kanmoi, where, on reaching the top of the bund, she had seen the occurrence. She would further depose that the accused attempted to rape her daughter Valli, and when such act was prevented by her, the enraged accused, assaulted her with Aruval, inflicting cut injuries on the left face, neck, hand and both sides of hips. After such attack, the accused pushed her into the water and ran away towards the western side of the Kanmoi. Immediately, she rushed towards the village and raised alarm, whereupon, the locals, namely Alagu, Lakshmi, Andiappan, Ponnaiah, and Shanmugam, came to that place and brought the deceased to the ground and found her dead. The husband of PW1, on information, came to the spot and along with him, PW1 went to Kundrakudi Police Station and lodged a complaint, wherein, she put her thumb impression and the same was attested by her husband. The said complaint is Ex.P1. PW1 identified the weapon of offence as MO1 and also the petticoat of the deceased as MO2.

ii) PW2/Alagappan, father of the deceased is the attesting witness for Ex.P1/complaint lodged by PW1. He deposed to the effect that while he was engaged in cooking work at a place called Kovilurmadam, on information given by some individuals ridinging motor cycles, he went to the spot ,where he found a crowd near the dead body of the deceased at the ground near the Konmai, and he took her wife PW1 at 11 Hrs to Kundrakudi Police Station, where, PW1 narrated the incident and, the police official reduced the same into writing and prepared the complaint under Ex.P1 and the same was attested by him.

iii) PW3/Andiyappan, would depose that, on the fateful day, i.e. three years back, and one day prior to the Pongal festival in the morning between 07.00 a.m. and 07.45 a.m., he and others went by the side of the Kanmoi for answering the calls of the nature and while they were returning, they saw the accused running away by that side holding an aruval. When they crossed a distance, they found a crowd near PW1's daughter, who was dead then with cut injuries. When he asked PW1 as to what happened, she told him that the accused cut her daughter. PW3 also identified the MO1 as the weapon of offence.

iv) PW4/Seenivas is the neighbour of PW1 and he is the mahazar witness for EX.P2/Observation Mahazar and Ex.P3/Attatchi for recovery of bloodstained earth/MO3 and sample earth/MO4 and also for recovery of other material objects viz., MOs 5 to 12.

v) PW5 is working as clerk in the Thattatipudhur Village Panchayat. He would depose that while he was standing at Korati village Bus stop, Kundrakudi Police arrested the accused at the Bus stop, whereupon the accused came forward to give a voluntary statement which was recorded in his presence and that of the VAO and the admissible portion thereof is Ex.P4. Based on the confession statement of the accused, the weapon of offence MO1 was recovered which was concealed in the roof of his residence and the same was recovered under Attatchi/Ex.P5.

vi) PW6 is the Inspector of Police (Crimes) attached to the Karaikudi South Police Station. He deposed that while he was on duty at Kundrakudi Police Station, on 13.01.2009 at 11 AM., PW1 and PW2 appeared before him and preferred a complaint under EX.P1, whereupon, he registered a case in Cr.No.5 of 2009 under Sections 302 IPC. The first information report is Ex.P6. He forwarded the copy of the First Information Report to the jurisdictional Court and transmitted the case papers to the higher ups and also to the Inspector of Police, Kundrakudi, for follow up.

vii) PW7 is the Medical Officer attached to Karaikudi Government hospital, who on receipt of the requisition received from the Inspector of Police attached to Kundrakudi Police Station, conducted autopsy on the dead body of the deceased on 14.01.2009 at 10.30 a.m. and, in the Autopsy report, marked as Ex.P8, PW7, he noted the following:-

External injuries 1) Left hand cut except thumb.

2) A cut injury run between two eyes in middle of Nose. Exposing both maxilla.

3) Neck cut open exposing both trachea, oesophagous lose of 2nd tracheal wing.

4) A cut injury right side of scapula size 2 x 2 cm (NC) into scapula

5) Another cut injury in Left scapula size 1 X 1 cm on to bone depth.

The Doctor also opined that the death occurred due to injuries of vital structure on the wind pipe (Trachea).

viii) PW8/Sundaramanickam, the Inspector of Police, on receipt of the case papers transmitted by PW6, took up the investigation of the case. On 13.01.2009 at 12.30 p.m., he proceeded to the place of occurrence, where, in the presence of witnesses, he prepared the observation mahazar and also rough sketch under Ex.P9., apart from examining the witnesses by name Nagappan and Seenivasan on the same day at 1.30 p.m. In the presence of Panchayatdars, he conducted inquest over the dead body of the deceased. The inquest report is Ex.P10. Through Grade- I Constable by name Murugan, he took steps for sending the dead body for postmortem at the Government Karaikudi Hospital. In the presence of witnesses, he recovered the material objects and the same were forwarded by him to the Court under Form 95. On 14.01.2009 at 10.00 a.m., at Korati Bus stop, in the presence of witnesses, he arrested the accused and, based on his voluntary confession statement, he recovered the weapon of offence. He took steps before Court to take the accused into police custody. He also sent the material objects for chemical examination through Court requisition. In the course of investigation, he got transfer and, his successor/PW9, one Mr.Sureshkumar took up further investigation of the case. PW9, after examination of witnesses and receiving the medical and forensic reports, concluded the investigation and filed report before the jurisdictional Court on 29.07.2009.

5. The learned trial Judge, after completing the procedure and considering the oral and documentary evidence let in, and upon hearing both sides, convicted and sentenced the accused as aforementioned, resulting in filing of the present Appeal before this Court.

6. The point that arises for consideration in this Appeal is as to whether the judgment of conviction and sentence passed by the trial court is sustainable in law or not?

7. Assailing the judgment of conviction and sentence passed by the Trial Court, the learned counsel for the appellant would submit that, in the cross examination of PW1, it is stated that the investigation officer came to the scene of occurrence at 1.30 p.m. and her left thumb impression was obtained in the complaint/Ex.P1 and if that be so, the registration of the complaint at 11. a.m. as per PW6's version cannot be true. It follows, the incident might have occurred without any eyewitness and that is why, in the crossexamination, PW1 would admit that she only saw the accused going the other side of the Kanmoi and did not see the commission of offence. Therefore, when the very genesis of the prosecution case is rendered doubtful, the Trial Court has committed a grave error in hurriedly passing the judgment of conviction and sentence against the appellant/accused. Proceeding further, he would submit that, in her cross-examination, PW1 states that the dog squad came to the spot and ran towards the house of the accused and thereafter, he was nabbed, whereas, PW8 the Investigation Officer would depose that he did not request the help of dog squad. Again, this material contradiction between the statement of PW8 and that of PW1 with regard to bringing the dog squad would only affect the credibility of the investigation done by the police. In other words, when the accused is stated to be known to PW1, there cannot be any logic in bringing the dog squad to the place of occurrence so as to identify the accused.

8. In order to demonstrate that the judgment of the Trial Court is not sustainable in law, the learned counsel would submit that when it is not even the case of prosecution that rape was committed upon the deceased, it is unfortunate that the Trial Court convicted the appellant/accused for the offence under Section 376 r/w 511 IPC. Simultaneously, when the deposition of PW1 would reveal that the deceased, at the relevant point of time, was wearing gold stud and silver anklets and because of that there is a strong suspicion that the said jewels stolen, it is not known as to why the Trial Court did not exhaustively dealt with the matter in the angle as to whether it was a murder for gain or not. Had such logical course been resorted to the Trial Court, definitely, it would have reached a different conclusion.

9. Adding further, the learned counsel would submit that it is the prosecution version that the Material Object (MO1) came to be recovered subsequent to the confession of the accused was bloodstained. If that be so, the forensic report Ex.P7 does not even indicate that there was any bloodstain on the said weapon. Therefore, the conclusion would be that the so called confession given by the accused is only a hypothetical theory drawn by the Investigation Officer and this vital aspect somehow escaped the consideration of the Trial Court. In this regard the learned counsel appearing for the appellant would draw the attention of this Court to a decision of the Hon'ble Apex Court, reported in {(2008) 1 SCC (Cri) 733 (Sattatiya v. State of Maharashtra)}, to press the point that for proving the charges of culpable homicide against the appellant, the prosecution should come up with a clear version about recovery of the weapon of offences. Therefore, the evidence of the prosecution witnesses being contradictory to each other, and there being no actual eye witness to the occurrence, the judgment of conviction of the sentence passed by the Trial Court warrants interference by this Court. The learned counsel for the appellant in support of his arguments relied upon the following judgments:-

1. {(2014) 3 SCC (Cri) 126 (Dhan Raj v.State of Harayana)}

2. {(2016) 2 MLJ (Crl) 152 (Arunkumar v. State)}

3. Crl.Appeal No.152 of 2001 and Crl.R.C.No.239 of 2001, dated 04.04.2007

10. Per contra, the learned Additional Public Prosecutor, while opposing the arguments advanced by the learned counsel for the appellant, would submit that PW1 is the eyewitness to the occurrence and there is no reason at all to reject her testimony. According to him, the prosecution has placed all the materials to substantiate its case and also projected the actual manner in which the occurrence had taken place. The so called flaws adverted to by the learned counsel for the appellant being so trivial and in no way affecting the case of the prosecution, the present appeal may have to be dismissed.

11. We have considered the rival submissions advanced on either side and perused the materials on record.

12. On a careful perusal of the judgment passed by the Trial Court, this Court has no hesitation even to point out at the first instance that the said judgment suffers from inconsistencies and infirmities. Admittedly, even the case of the prosecution is that the accused/appellant attempted to approach the deceased for intercourse and he could not succeed in the said alleged act due to the resistance shown by the deceased. Further, the postmortem report does not even spell anything to suggest that the deceased was subjected to any sexual violence. Similarly, when the accused was charged for the alleged offence under Section 376 IPC, it is not known as to why the investigation agency took no steps to subject him to potentiality test. While so, without looking into all these aspects, the Trial Court simply proceeded to highlight the version of the prosecution case as such and hurried to convict the appellant/accused for the offence under Section 376 IPC r/w 511 IPC. While discussing on the said aspect, the Trial Court extraneously recorded a finding that the deceased fell into water and thereafter also, the accused assaulted her with the aruval tip on the left and right back. But, the fact remains that even the deposition of PW1, the so called eyewitness, does not run to the effect that even after the deceased falling into the water, the accused continued to inflict the cut injuries on the deceased. In other words, the said finding of the Trial Court is nothing but reflection of the version in the charge. Therefore, this Court has no hesitation to hold that the Trial Court did not exhaustively analyse the materials available on record so as to arrive at a proper and definite conclusion.

13. Similarly, the Trial Court also failed to note the unnatural behavior of PW1 while witnessing of the occurrence by her. In this regard, from the deposition of PW1, it could be seen that on hearing the alarm raised by her daughter yelling that the accused was catching hold of her, she went atop the bund and witnessed without any reaction, the act of the accused in invariably inflicting cut injuries on her daughter. She only reacts to call the locals only after the alleged attack by the accused on the deceased was over. In other words, the natural reaction of a mother like PW1 would be to somehow prevent the assailant from attacking the daughter, but, the deposition of PW1 would indicate that she did not do so and, as already stated, only after the alleged attack was over, she started gathering people to lift the body from the Kanmoi. But, unfortunately, the Trial Court proceeded to act upon the feeble evidence of PW1, does not inspire the confidence of the Court.

14. There is also a clear contradiction between the evidence of PW1 and PW3, in that, while the former would say that after the attack on her daughter was over, she rushed towards the village to gather the people including PW3, the evidence of the latter is to the effect that he and others came to the spot after attending calls of nature. In other words, the evidence of PW3 falsified the version of PW1 to the effect that only on her instance PW3 and others were brought to the scene of occurrence. Even though the prosecution sought to build up its case with the evidence of its star witnesses PW1 and PW3 particularly in regard to the identity of the accused, unfortunately, PW3, at one place in his evidence would say, that he does not know the name of the accused and at another place, would say that he was told by PW1 that one Adaikkan murdered the deceased. This aspect would, undoubtedly, affect the credibility of their witnesses. Also the Trial Court has given a shallow finding that if the murder was for gain, the jewels worn by the deceased would have been removed from her. In the absence of any independent discussion in the light of oral or documentary evidence that the gold jewels worn by the deceased have not been removed or the same would have been entrusted to her family members after her death, the said finding has to be simply brushed aside.

15. Further, in the judgment relied on by the learned counsel for the appellant in {(2008) 1 SCC (Cri) 733} (cited supra) the Hon'ble Supreme Court has observed that credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the chemical examiner's report the blood stains found on the shirt, pants and half blade were those of human blood, the same could not be linked with the blood of the deceased. While so, coming to the present case, not even bloodstains were found in the weapon of offence and hence in it is highly improbable for the prosecution to project the version that the weapon of offence recovered was bloodstained. Therefore, after an over-all analysis of the judgment of the Trial Court in the light of the materials made available, this Court is not able to find any good reason to sustain the said judgment.

In the result, the Criminal Appeal is allowed by setting asidethe judgment of conviction and sentence passed against theappellant by the Trial Court. The appellant is directed to set atliberty forthwith, if he is not required in connection with any othercase.


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