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Ravanan v. State represented by - Criminal Appeal No.137 of 1996  RD-TN 197 (27 March 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE V.S.SIRPURKAR AND
THE HONOURABLE MR.JUSTICE A.PACKIARAJ Criminal Appeal No.137 of 1996
Ravanan .. Appellant -Vs-
State represented by
Inspector of Police
Kumbakonam South Police Station
(Crime No.495/94) .. Respondent Appeal under Section 374 Cr.P.C. against the conviction and sentence passed in C.A.No.162 of 1995 on the file of the Principal Sessions Judge, Tanjore.
For Appellant : Mr.C.Vijayakumar
For Respondent : Mr.V.M.R.Rajendran
Additional Public Prosecutor :J U D G M E N T
(Judgment of the Court was delivered by V.S.SIRPURKAR, J.) This appeal is by an accused, who has been convicted by the Principal Sessions Judge, Thanjavur for an offence under Section 302 on the allegation that he had committed murder of his wife Neelavathi in the night between 14 and 15th May, 1994.
2. At the relevant time, the accused was living along with his wife Neelavathi and their three daughters at a place called Melapazhayar. The prosecution story says that in the night one Thangaiyan P.W.2 heard the cry of a child coming from the hut of the accused, which was just opposite to his house. Growing suspicious, he went and found the child crying all alone. He, therefore, picked up the child to the house of P.W.1 Maruthamuthu, who was none else than the grand father of the child, being Neelavathi's father. Seeing that Thangaiyan had brought the child of his daughter Neelavathi and hearing that there was nobody in the hut, P.W.1 Maruthamuthu along with P.W.2 Thangaiyan went to the hut of his daughter at about 1.30 p.m. at night only to find that there was nobody. It is his case that thereafter he woke up a lady who was staying next to the hut of his daughter, she being P.W.4 Lakshmi, who told him that she had heard the conversation between his daughter Neelavathi and her husband, the accused that they wanted to go to pluck coconuts. The prosecution case is that she also had heard that they were going towards Kaliamman temple. Therefore, P.W.1 along with P.W.2 Thangaiyan went near the temple only to find the dead body of his daughter Neelavathi, who was injured in a gruesome manner to the extent that her two breasts were clean cut and were kept neatly on the banana leaf separately. It seems that all this took place just within an hour and thereafter Maruthamuthu came back and in the morning at about 7.15 a.m. he reported the incident to the police in Kumbakonam Taluk Police Station. This report was reduced to writing by P.W.9, who was a Sub Inspector of Police at that time and that is how the investigation began.
3. Investigation was done by P.W.10 Selvarajan, who went to the spot, conducted inquest over the dead body, prepared the observation mahazar, took the body in his possession, sent it for postmortem and also recorded the statements of the witnesses like P.W.1.Maruthamuthu, P.W.2 Thangaiyan, P.W.4 Lakshmi and others. At that time, the accused was not to be found, but ultimately it came to be revealed that the accused, on 16.5.1994 itself went and surrendered himself before the Judicial Magistrate No.II, Ariyalur. On 16.5.1994, the investigating officer also recorded the statement of one Muniyandi, who was the cousin of the said unfortunate Neelavathi, who revealed that on the same night between 14 and 15.5.1994, he along with one Govindan was returning by a short route from Kumbakonam to the village and near the river which had to be crossed while approaching the village, he saw the accused armed with a sickle and the accused on being asked, told him that he had already mentioned to Muniyandi about the misbehaviour of Neelavathi and that he had murdered Neelavat hi now. It was the claim of the witness then that he along with the help of Govindan tried to apprehend the accused and the accused ran away.
4. It was also revealed from the statements of the witnesses that the accused himself was an accused in another murder case in respect of one Kennedy when the accused was living along with his wife in Pullapoothangudi village and the motive for that murder was the alleged illicit relationship between Kennedy and Neelavathi. Eventually, it is reported before us that the accused was acquitted of the said charge, but was convicted with some minor charge. Be that as it may. It is also revealed in the prosecution case that it was P.W.1 himself who got the accused out on bail and brought him to his village viz., Melapazhayar and also established him there by erecting a hut on the Government land which was allotted to P.W.1. During the investigation, the investigating officer also came across another witness, P.W.7 Kaliyan, whose statement was recorded on 10.6.1994, who claimed that the accused, on or about the day of murder had come to him and made an extra judicial confession that he had killed his wife.
5. Very surprisingly in this case, the accused was never taken into custody by the investigating officer. Perhaps, the reason being that accused had already surrendered to judicial custody before the Judicial Magistrate No.II, Ariyalur and perhaps thereafter he was sent to the judicial custody of the Magistrate at Kumbakonam. It is only on 27.5.1994 that the investigating officer seems to have applied for the police custody of the accused, in which application he has clearly mentioned that he had the intention to recover and to know about the murder weapon viz., the sickle and therefore he wanted the custody of the accused. Surprisingly, the said application of the investigating officer was rejected by the Magistrate. We express our deep consternation on this attitude of the Magistrate, but we shall come to this subject later on in this judgment.
6. On the basis of the evidence collected, the accused was sent for trial after being committed to the Sessions Court. The prosecution mainly relied on the evidence of P.W.1, the father of the deceased, P.W.2 Thangaiyan, P.W.4 Lakshmi, P.W.6 Muniyandi and P.W.7 Kaliyan. It did not bother to produce the evidence of Govindan who was allegedly accompanying P.W.6 Muniyandi and in whose presence the accused had allegedly made an extra judicial confession. It is on record that not only Govindan's statement was recorded by the Investigating Officer, but he was also cited as a witness. The learned Public Prosecutor before us could not give the reason as to why Govindan was given up by the learned Public Prosecutor at the trial stage. Be that as it may. The accused pleaded not guilty and tried to suggest that he was not present in the village at all and he had gone to his native village Pullapoothangudi to arrange funds for the obsequies of his wife's uncle and that on coming to know of the allegation against him, he had surrendered before the Ariyalur Magistrate on the very next day.
7. The learned Sessions Judge accepted the evidence of the prosecution and held that though there was no direct evidence available in this case, the circumstantial evidence was clinching enough to create a chain of circumstances which pointed out to the guilt of the accused and thereby convicted the accused. The circumstances accepted by the learned Sessions Judge are the fact that there was a talk about the loose character of Neelavathi and that there used to be bickerings amongst Neelavathi and her husband, the accused, the fact that the accused and Neelavathi were together on the last night and left together for Kaliamman temple allegedly for plucking coconuts, the fact that immediately thereafter Neelavathi was found dead and the fact that the accused had made an extra judicial confession firstly to Muniyandi-P.W.6 in the presence of Govindan, and secondly to Kaliyan-P.W.7. It is on the basis of these circumstances that the learned Sessions Judge chose to convict the accused.
8. Learned counsel who assaulted the judgment of the Trial Court, pointed out that this was a case of insufficient evidence. According to the learned counsel, it could not be said that there was a chain of circumstances against the accused and that chain of circumstances not only pointed out towards the accused, but established that it was the accused alone who could have committed the crime. According to the learned counsel, the Sessions Judge had not properly appreciated the evidence regarding the so called established circumstances and further, the approach of the learned Sessions Judge in convicting the accused on such dismal circumstances was totally faulty.
9. As against this, the Public Prosecutor tried to support the conviction saying that this was a case where the witnesses had no interest and were not inimical towards the accused at all and their presence on the spot was also natural. The learned Public Prosecutor also suggested that the extra judicial confession was the strongest circumstance in favour of the accused. Learned Public Prosecutor also pointed that it was the duty of the accused to explain as to how the wife who was in the immediate company of the accused was found dead.
10. On this back drop, we have to consider as to whether the learned Sessions Judge was right in convicting the accused.
11. In the first place, we have to see the evidence of Thangaiyan-P.W.2, who was awakened due to the crying of the child in the hut of the accused. It was tried to be suggested by the learned defence counsel that it was an unnatural evidence as P.W.2 could have asked the lady folk of his house to go and enquire about the crying child. We do not think so. There was nothing wrong in P.W.2 going to the hut of the accused and then carrying the crying child to the hut of P.W.1 Maruthamuthu, who was none else than the grand father of the child. Therefore, that part of the prosecution story does not appear to be unnatural. Again, the subsequent actions taken by P.Ws 1 and 2 Maruthamuthu and Thangaiyan also did not appear to be unnatural because it would be the anxiety of the father to see as to what has actually happened and why was it that his son-in-law, the accused and the deceased, his daughter were absent at such an unearthly hour from their hut.
12. In this behalf, when we see the evidence of P.W.1, it is stated that the witness had claimed about the suspicion of the accused regarding the character of his wife, the fact that the accused being involved in the murder of one Kennedy and his being released on bail, the fact that the accused being brought to the present village Melapazhayar and his being established there along with his wife. He had also alleged that the accused used to often quarrel with Neelavathi. Very significantly, however, there is nothing to be found in the evidence of this person as to when he saw the accused and the deceased last. The evidence is completely silent about that aspect. We also do not see anything wrong in this witness then going and searching for his daughter. However, he claimed that when he first went to his daughter's hut, he called Lakshmi and Lakshmi told that she had heard that the twosome, the deceased and the accused were going to pluck the coconuts. He also claimed that Lakshmi told that the accused and the deceased went towards the western side of Kaliamman temple. Now, it is to be remembered that his assertion is only based on the evidence of Lakshmi, who had allegedly heard the conversation between the accused and his wife, the deceased and had later on asserted that she had seen them going together. However, beyond establishing that the accused had a strained relationship with his wife and he used to often quarrel with her, nothing much has come in the evidence of this witness. In order to see whether in reality Lakshmi had told him that the accused and his wife had gone towards Kaliamman temple, we would have to closely examine the evidence of Lakshmi. Insofar as the evidence of P.W.1 is concerned, some suggestions seems to have been put to him to the effect that even in the present village where his daughter had come to live with her husband, she had developed illicit relations with two other persons and that those two other persons were also threatening Neelavathi not to continue her relations with one Selvaraj and Murugan, who were residing at Pullapoothangudi. We do not think anything can be attributed on this count and we really do not think that the evidence of this witness helps the prosecution much excepting that he has said about his having asked the whereabouts of his daughter.
13. Learned defence counsel, however, pointed out that though P.W.1.Maruthamuthu had found the dead body at about 2.30 p.m. at night, the witness had gone to the police station only at about 7.15 a.m. the next day and that too the witness had not explained as to how he had gone. It has come in the evidence that by a short route, the distance between Kumbakonam and the village could be negotiated on foot also. Learned counsel wanted to suggest that the F.I.R. which has been recorded at 7.15 a.m. is a belated F.I.R. The learned counsel contends that ordinarily an F.I.R. recorded after four or five hours could not be called as a belated F.I.R, but in this case particularly because of some particular circumstances, the F.I.R. would be a suspected document. We will come to that aspect when we consider the evidence of P.W.6 Muniyandi. But before that, we must go to the evidence of P.W.4 , Lakshmi.
14. The evidence of P.W.4 Lakshmi is very heavily relied on by the prosecution to suggest that she had seen the accused and the deceased in each other's company on the fateful night. Her case is that while she was eating at the entrance of the house, the accused and Neelavathi had a conversation that they were going to pluck the coconuts. Her further case is that thereafter she went to sleep and in the midnight at about 1'O clock, she came out to pass urine and it was at that time that the accused and Neelavathi went towards Kaliamman temple from their house. Very surprisingly, Lakshmi did not tell P.W.1Maruthamuthu that she had seen them going towards the temple or at least that is not the claim of P.W.1. P.W.1 merely stated that Lakshmi had told that that the twosome had gone towards the western side of Kaliamman temple. Again, her claim is that after passing urine at about 1'O clock, for which she had come out, she remained awake till 1.30 p.m. However, Lakshmi has not spoken about the cry of the child. It was tried to be suggested that she could have slept upto 1.30 p.m. and because of that she was not able to hear the cry of the child. However, the learned defence counsel pointed out that she had admitted that it was totally dark when she woke up to pass urine at about 1'O clock. It was therefore expressed that she could not have possibly seen the accused and the deceased Neelavathi or at least she could not have seen it very significantly that it was the accused alone who was accompanying the deceased.
15. An omission was pointed out in P.W.4 Lakshmi's evidence that she had told the police that Neelavathi and Ravanan had gone talking to each other. In his evidence, the investigating officer P.W.10 was not even asked about this omission. Therefore, that part of the omission has to be ignored. But, the question still remains is as to whether Lakshmi could have had an opportunity to see the two persons at 1'O clock accidentally when she came out to pass urine. If she had heard the twosome talking to each other only in the evening at the time when she was taking her meals, that they were going to pluck the coconuts and if she did not state to P.W.1 that she had seen the accused and the deceased going, the evidence of Lakshmi in the absence of any other corroboration becomes rather shaky. We, therefore, cannot restrain from concluding that Lakshmi's claim of having seen the accused and the deceased going together at 1'O clock at night was only a claim depending upon a chance that she had actually woken up for making water, and in the absence of any corroboration to the same, it cannot be accepted.
16. Cross matching P.W.4 Lakshmi's evidence with the evidence of P. W.2 Thangaiyan, it is rather surprising that Lakshmi did not hear the child crying. If Lakshmi's case is that the twosome left at about 1'O clock, it will be only after that that the child started crying and she claims that she was awake from 1'O clock till such time as she was asked by P.W.1 about the whereabouts of his daughter. The strongest defect in the evidence of Lakshmi is that though after the departure of the accused and the deceased, P.W.2 Thangaiyan could hear the cry of the baby and carry the baby to P.W.1, Lakshmi did not realise the same nor she heard the cry of the baby; and that is her admission in her evidence. It is for this reason that we feel risky to rely on the evidence of Lakshmi. That leaves us with the evidence of the star witness Muniyandi-P.W.6.
17. P.W.6 Muniyandi claimed that when he was returning after seeing the movie from Kumbakonam by the short route, he was accompanied by one Govindan. He claimed that it was dark and it was with the help of the torch that he saw the person who was coming towards them. This aspect of his having burnt the torch has not been told by him in the police statement and is an omission, which is proved. That apart, it must be remembered that the deceased Neelavathi was his cousin and yet, even when he approached the village he did not go either to the house of Neelavathi or to the house of her father, who was none else than his paternal uncle. The relationship is admitted by the witness in his examination in chief itself. This silence on the part of Muniyandi is more telling. That apart, Muniyandi did not also offer himself for the statement on 15th of May, 1994 when the police was all through in the village. He was made available only on 16.5.1994, when the statement came to be recorded. There are inherent defects in the whole affair.
18. As if all this was not sufficient, the prosecution for the reasons known to it alone, did not choose to examine Govindan, who could have supported the version of Muniyandi. P.W.6 Muniyandi could not even tell the name of the movie that he had seen at Kumbakonam and was candid to admit that he was stating about the torch for the first time in the Court. His silence even after coming to know about the murder of his cousin is further silenced on 15th of May and the non examination of Govindan makes it extremely risky to rely on this evidence. As it is, the evidence on extra judicial confession is considered to be weak in the criminal jurisprudence. Here is a case where the witness has chosen to observe a studied silence for more than 36 hours. The learned Sessions Judge has chosen to accept the evidence of this witness. However, we are not satisfied with the appreciation of evidence on the part of the learned Sessions Judge insofar as this witness is concerned. It must be remembered that Muniyandi has claimed that on 14.5.1994 in the morning at 8'O clock itself,the accused had come and complained to him about the misbehaviour of Neelavathi. It is strange that he did not speak about that to anybody during the day also and on that back drop when he came to know that his cousin sister was murdered by the accused, it is difficult to believe that he would keep quiet and would not even go to his uncle P.W.1.Maruthamuthu's house to tell about the real assailant. We hold that the evidence of P.W.6 could not have been relied upon by the learned Sessions Judge.
19. Last comes the evidence of P.W.7 Kaliyan, who has not even stated the date on which the accused allegedly made the so called extra judicial confession to him. He has chosen to keep quiet for almost 25 days. It is only on 10.6.1994 that his statement came to be recorded. We do not see any reason for this delay, nor has the prosecution bothered to give any. His evidence is likely to be rejected out right.
20. If all this has to be seen from the general angle, then this is a case of almost no evidence. Even if we accept the evidence of P.W.4 Lakshmi, then the only circumstance that is left would be that the accused was in the company of the deceased. have given our reasons why that cannot be accepted. Again, that circumstance by itself would not be able to provide a chain of circumstances which would speak about the role played by the accused and further establishing that the accused alone was responsible for the murder. We cannot, but, express our deep consternation on the way the investigation was conducted in this case. We find this to be a case of slipshod investigation. Also further, we do not understand as to why the investigating officer had to wait upto 27.5.1994 to claim the custody of the accused. There is absolutely no explanation, which has become all the more pertinent on the back drop that the accused had surrendered on 16.5.1994 itself. We also fail to understand as to how the learned Magistrate refused the application of the custody, though it was specifically prayed that the custody of the accused was required for further investigation and though this was a gruesome offence of murder. We are constrained to hold that the prosecution has not been able to prove by legally acceptable evidence that it was the accused who committed the murder of Neelavathi on the night of 14 and 15.5.1994.
21. We would, therefore, allow the appeal and set aside the conviction and sentence imposed on the appellant. The accused is, therefore, acquitted and shall be set at liberty forthwith unless he is required in connection with any other case.
(V.S.S, J.) (A.P, J.)
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1.The Principal Sessions Judge, Thanjavur.
2.The Public Prosecutor, High Court, Madras.
3.The Superintendent, Central Prison, Trichy.
4.The Collector, Thanjavur.
5.The Director General of Police
Santhome, Mylapore, Chennai-600 004.
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