M. Nithyanandam vs Inspector of Police

T. Sudanthiram, J.—The accused is on appeal against the judgment dated 14.7.2010 in S.C. No. 102 of 2009 on the file of the Additional District Judge-cum-Presiding Officer, Special Court under Essential Commodities Act, Thanjavur.

Learned Additional District Judge-cum-Presiding Officer, Special Court under Essential Commodities Act, Thanjavur, convicted the Appellant herein u/s 302 of I.P.C. (2 counts) and u/s 302, I.P.C. read with Section 201 of I.P.C. (2 counts). He was sentenced to life imprisonment with fine of Rs. 500 in respect of each of the offences, failing which, to undergo rigorous imprisonment for three years in respect of each of the offences and a further fine of Rs. 500, failing which, to undergo rigorous imprisonment for six months in respect of each of the offences.

The case of the prosecution is that on 3.11.2003, the accused strangulated his wife Sumithra and his minor son Vimal aged 4 years, thereby committed murder of these two persons and after thus committing these murders, the accused threw the dead body of his wife and child into the river. Thus the offences committed by the Appellant were punishable u/s 302 of I.P.C. read with Section 201 of I.P.C.

To prove the prosecution case, P. Ws. 1 to 30 were examined, Exs. P1 to P44 were marked and M. Os. 1 to 8 were produced. The Appellant denied his complicity in the offence, but did not examine any defence witness.

The facts herein, briefly, are as follows:

The Appellant herein Nithyanandam was working as a driver in Trichy Government Transport Corporation from the year 1993. He married one Poongodi and begot three children. Thereafter, he went in for a second marriage with one Sumithra and through her, he had a son by name Vimal. His first wife Poongodi was living in Onbathuveli Village and the second wife at Perumbuliyur. Due to the difference of opinion among the accused and the deceased Sumithra, they were having frequent quarrels. It is stated that on account of the same, on 3.11.2003, with an intention to cause the death, the accused took his wife Sumithra and their son Vimal in a bus. While they were conversing, on the southern bank of Vennaru, in Mahimalai Village, the accused throttled the neck of the deceased Sumithra and pushed her into the river at about 9.00 p.m. thereafter, at about 10.00 p.m. he came to Ammapettai along with his son Vimal. When they were near Poondi new bridge, since the accused apprehended that his murdering his wife would be made known to others through Vimal and that with the intention to prevent the same, caused the death of the said child Vimal by throttling his neck and threw the dead body into the river, thereby indulged in erasing the evidence of his criminal act to escape from any action.

P.W. 1 - Shanmugasundaram is the brother of the deceased Sumithra. It is seen from his evidence that the deceased Sumithra filed a petition for maintenance against the accused. On 3.11.2003, the deceased went along with her son, at the request of the accused, to Kandiyur. There afterwards, since she was not traceable, he lodged a complaint before the Maruvoor Police Station, Thiruvaiyaru, under Ex. P1, stating therein that in spite of efforts taken, he could not trace his sister and his nephew.

A case was registered by P.W.26 - Rajendran, Sub-Inspector of Police, in Maruvoor Police Station in Crime 144/2003 on 1.12.2003 as woman missing. The First Information Report is marked as Ex. P28. It is seen that one Kalaichelvan, P.W.5, Village Administrative Officer of Thenkuvalaveli Village, Valaigaiman, lodged a complaint Ex. P6 in the Haridwaramangalam Police Station on 13.12.2003 at about 8.00 a.m. that near the Harijan burial ground, a body was buried. It is stated therein that in Kuruvadi in Thenkuvalaveli Village, on the northern banks of Vennaru, a body was buried in the Harijan burial ground without any information. He pointed out that the incident occurred some 20 days back. He requested the concerned Police Officer to take necessary action. The case was registered in Crime No. 41/2003 u/s 176(3) of Code of Criminal Procedure, marked as Ex. P6 by Haridwaramangalam Head Constable P.W.7 Duraisamy. The First Information Report was marked as Ex. P10 and forwarded a requisition Ex. P8 to the Tahsildar of Valangaiman and other officials through P.W.8 -Head Constable Katturaja, for conducting the port mortem. Accordingly, the Tahsildar of Valangaiman P.W.10-Balasubramanian, visited Kuruvadi Village on 13.12.2003 along with the Doctor, Inspector, Village Administrative Officer and the Panchayat President and in their presence, exhumed the body. An autopsy was conducted by P.W.17-Dr. Prabha on 13.12.2003 at 3.30 p.m. after taking the body out of the tarpaulin in which the body was kept. Ex. P21 is the post-mortem certificate. P.W.15 - R. Vasuki, Scientific Assistant, certified that there was no toxic substance detected in the body Ex. P19 is the chemical examiner''s report. P.W.16 Valli, Scientific Assistant, deposed that there was no evidence that the deceased died of drowning. Ex. P20 is the Scientific Report. P.W.20-Dr. Senthil Kumar of Tanjore Medical College Hospital, who conducted the forensic examination along with Dr. Vijayalakshmi, deposed that there was no ante-mortem injury noted anywhere over the examined hyoid bone except for the post-mortem injuries. Ex.P20 is the forensic report to that effect. Under seizure mahazar - Ex. P13, M.0.4-nylux saree, M.O.5 - skirt and M.0.5 - blouse, kept in a yellow bag-M.O.3, were seized. In the presence of P.W. 10-Tahsildar, the inquest report was prepared and marked as Ex. P14. Exs. P15 and P16 are the requisitions for conducting the chemical and forensic examination of the internal organs.

On 7.11.2003, while P.W.11, Selvaraj, Village Administrative Officer, along with his Assistant, were collecting tax, his Village Assistant P.W.12 Shah Jahan came and reported to him that in the channel, a body of a child was found. Accordingly, a complaint was lodged to the Ammapettai Police Station under Ex. P17. P.W.25 - Sub Inspector of Police, received the complaint and registered the First Information Report under Crime No. 227 of 2003 u/s 174, Code of Criminal Procedure The First Information Report is marked as Ex. P26. She visited the scene of occurrence. Ex. P18 is the observation mahazar and Ex. P25 is the rough sketch. In the presence of the Panchayatdars, she conducted the inquest, prepared the inquest report under Ex. P27 and handed over the investigation to the Investigating Officer for further action. She also sent the body through PW 22 Head Constable - Pattu to the hospital with a request for conducting the autopsy. M.O.7 and M.O.8 are the cement colour T Shirt and half pant worn by the child and a pair of black shoes and one pair of green colour socks were sent under special report - Ex. P24 and handed over to the Inspector. Evidently, no post-mortem certificate is marked as regards the autopsy conducted in the body of the child Vimal. Ex. 20 is the forensic report. At the request of the Tahsildar under Ex. P29, P.W.18-Nirmala Rajkumar, Assistant Director, Forensic Sciences Department, made image superimposition to make the observation that the skull, possibly, could have belonged to a child. P.W.18 opined in her report Ex. P30 that the skull could have belonged to a woman.

P.W.25, Sub-Inspector of Police, forwarded the case registered in the Ammapettai Police Station in Crime No. 227/2003 to the Inspector of Police of Ammapettai Police Station- P.W.28. P.W.28 - Thanigalvelu, Inspector of Police, enquired on the occurrence on 9.3.2004 and recorded the statement. The evidence collected related to both the crimes registered in the Marurvoor Police Station, Haridrawamangalam Police Station in Crime No. 144 of 2003 and 227 of 2003 respectively. Hence, the charges were altered to Section 302 of IPC. The altered First Information Certificate is marked as Ex. P32.

P.W.29 Inspector of Thiruvaiyaru Circle, conducted the investigation in respect of Crime No. 144 of 2003 before the Maruvoor Police Station on 12.12.2003, received the First Information Report registered in Ammapettai Police Station in Crime No. 227 of 2003 u/s 174 of Code of Criminal Procedure, and arranged to take photograph of the boy Vimal enquired P.W.1, P.W.2 and others to identify the photograph of the deceased boy. Thereafter on 13.12.2003, P.W.4, the said Village Administrative Officer of Vaidyanathanpettai, came to the Police Station along with P.W.6, Mahendran along with a report, stating that he was producing the accused. The report submitted by P.W.4 is marked as Ex.P33. After enquiring P.W.4, the accused was arrested. In the presence of P.W.6 and P.W.4, the accused confessed as having committed the offences. The confession statement was recorded and the admissible portion of the same is marked as Ex.P34.P. Ws.2 and 4 attested the same. Based on the information thus received from the Haridwaramangalam Police Station, on 4.11.2003 at about 9.00 a.m., along with the witnesses, the accused was taken to Vennaru bridge. On the southern banks, he identified the occurrence spot. The observation mahazar is marked as Ex. P5. P.W.4 affixed his signature Ex. P3 and Rough sketch Ex.P36 was prepared. The accused took; and produced before the Investigating Officer a yellow bag (MO3), red nylon saree (MO4), rose colour skirt (MO5), red colour blouse (MO6), Coat type T Shirt (MO7) and half pant'' (MO8) from the bush. The same was seized under mahazar Ex.P39, in the presence of P. Ws.4 and 6. On 13.12.2003, when the body of Sumithra was exhumed and post-mortem was done, the accused brought there, identified the body as that of his wife and that the clothes worn there were his wife''s clothes. Thereafter, the accused was arrested and handed over to judicial custody. On the same day, the case registered before Maruvoor Police Station in Crime No. 144 of 2003 was altered to one u/s 302, I.P.C. Ex. P43 is the altered First Information Report. The seized material objects were sent under Ex. P44 in Form No. 95 to the Court.

Thereafter, the accused took them to the place where he committed the murder of his son and identified the occurrence spot. The observation mahazar is marked as Ex. P37 and Ex. P38 is the rough sketch. After recording statement P.W.29 transferred the case to Ammapettai Police Station. P.W.21 - Ramesh is the photographer who took the photographs of the boy Vimal. Ex.P21 is the series of photographs. The negatives are marked as M.O.2. P.W.19-Rajaram, General Manager in the Tamil Nadu Transport Corporation, deposed that the accused was on duty on 2.11.2003 from 2.00 p.m. to 3.11.2003 2.00 p.m. in the Trichy-Nagal route. P.W.26 - Soundararajan, the Registering Clerk working in Thiruvaiyaru Sub-Court, deposed about the case filed by Sumithra against her husband for maintenance in M.C. No. 1 of 2002 and that she withdrew the case on 11.10.2002. He further deposed that as requested by the Inspector of Police, Ammapettai, he verified the documents relating to the said case. P.W.27 -Chandrasekhar, an agriculturist, Kuruvadi Village, deposed that while he was working therein, on getting information that a female body was floating in river, he went to the river side and on the impression that she might have fallen into the river accidentally, the village people buried her therein. Suspecting the cause of her death, in the presence of the Tahsildar, the body was exhumed and he is a witness to the Observation Mahazar. P.W.30 -Soundararajan, Inspector of Police in Ammapettai Police Station, altered the case registered in Maruvoor in Crime No. 41 of 2003 to be one u/s 302, I.P.C. P.W.30, on making an inquiry with reference to the crime registered in Maruvoor in Crime No. 41 of 2003, found that the accused had married the deceased as a second wife even while the first wife was alive and they begot a child Vimal. On account of the difference, he committed the murder of Sumithra and Vimal. P.W.30 completed the investigation and filed the final report.

The post-mortem certificate relating to Sumithra marked as Ex.P21 -Post-Mortem Certificate reads as follows:

Post-mortem commenced at 3.30 p.m. on 13.12.03 spot post-mortem.

Appearances found at the post-mortem.

Body was exhumed from Vennar Vadakaral in Kuruvadi Village ,Haridwaramangalam area and found decomposed inside a Tarpaulin cover and appearance lies on its back, female body, moderately nourished. Symmetrical skin colour decomposed stage. No external injuries noted on the body is decomposed. There is loosing of scalp air which is alone 20 cm. in length and is black eyes liquefied (B, C,). Face symmetrical eyes most liquefied. Teeth fallen down. Thorax decomposed.

Internal examination:

Heart chambers empty, decomposed. Lungs decomposed. Thigh hyoid bone preserved for chemical analysis. Sternum preserved for chemical analysis. Sternum preserved to chemical analysis. Stomach: Preserved for analysis. Pancreas liquefied. Liver (h.c.) it preserved for chemical analysis, decomposed. Spleen liquefied. Kidneys found decomposed sent for analysis. Intestines: Preserved for chemical analysis and is decomposed. Uterus decomposed. Head: No skull fracture and skull present for forensic analysis.

Ex. P22 relating to chemical - forensic analysis of the hyoid bone reads as follows:

On Examination: Hyoid bone is present as three pieces namely, the body and the two greater horns separately, the separation of both the greater horns from the junction with the body is because of postmortem fracture separation. The outer one third of the right greater horn is found missing due to post-mortem fracture separation. There is no evidence of any ante mortem injuries noted anywhere over the examined parts of the hyoid bone.

Opinion: I am of the opinion that there is no antemortem injury noted anywhere over the examined hyoid bone except for the post-mortem injuries as described above.

There is no evidence of any injury of any sort noted anywhere over the examined left femur bone.

Ex. P19 - forensic report dated 30.1.2004 reads as follows:

Piece of stomach and its contents.

Piece of intestine and its contents

Piece of liver

Piece of kidney

Preservative.

The above five articles were examined but poison was not detected in any of them.

Learned Counsel appearing for the Appellant submitted that there is no eye-witness to the occurrence and the whole prosecution rests upon the extra judicial confession said to have been given by P.W.4, the Village Administrative Officer, which was recorded in the presence of P.W.6. Though the Village Administrative Officer P.W.4 had turned hostile and did not support the prosecution case, the Trial Court erroneously convicted the Appellant, relying on the evidence of P.W.6.

Learned Counsel appearing for the Appellant further submitted that the post mortem certificate relating to the deceased wife Sumithra is marked by the prosecution, but the post-mortem certificate relating to the deceased child Vimal has not been marked by the prosecution. Even as per the evidence of the Post -mortem Doctor P.W. 17 and as per the post-mortem certificate-Ex. P21, the cause of the death has not been established.

Per contra, the learned Prosecutor submitted that though P.W.4 had turned hostile, P.W.6, who was present while P.W.4 was recording the extrajudicial confession, had supported the case of the prosecution and he had signed in Ex. P33. Further, on the basis of the confession given by the accused to the Police, M. Os.3 to 5 were recovered. Learned Prosecutor admitted that the post-mortem certificate of the deceased Vimal has not been marked by the prosecution and P.W. 17, Doctor, was not able to give any definite opinion regarding the cause of death.

We have considered the submissions and perused the records carefully.

The body of the deceased Sumithra was found near a river by the villagers belonging to the Kuruvadi Village, Haridwaramangalam. P.W.5 gave a complaint to the police, Haridwaramanagalam Police Station. The inquest was also held on 13.12.2003. Ex. P12 is the inquest report. As per that report, the name and the particulars of the deceased were not known. It was concluded as per the inquest by the Panchayatdars that the deceased would have fallen into the river and died. On inquiry, it was informed by the villagers that she was roaming in the village as a beggar. Post-mortem was also conducted on the body. As the body was in a decomposed stage, the Doctor did not give any opinion at that time. The body of the deceased male child Vimal was found by the villagers belonging to Keezhakoilpathu near the river bank. P.W.11, the Village Administrative Officer, also gave a statement to the Ammapettai Police Station. Ex. P27 is the inquest report relating to the body of the deceased Vimal. At that time, the particulars of the male child was not known. After the inquest, though the body was sent for post-mortem examination, the post-mortem certificate was not produced before the Trial Court. After the alteration of the First Information Report by the Inspector of Police, Ammapettai Police Station for an offence punishable u/s 302, I.P.C., the body of the deceased Sumithra was exhumed and it was also identified by the accused and P.W.I, brother of the deceased and a sample hyoid bone was sent for chemical analyst''s report. According to the Chemical Analyst''s report Ex. P22, there is no ante mortem injury.

P.W. 17, the post-mortem Doctor, based on the reports, had clearly deposed that as the body was decomposed, no opinion could possibly be given, regarding the cause of death. Further, for the reasons best known to the prosecution, the post-mortem certificate of the deceased Vimal has not been produced before the Court and the post-mortem Doctor also had not been examined. It is also admitted by the learned Prosecutor that even in the list of witnesses, the Doctor who conducted the post-mortem examination of the deceased Vimal has not been cited as a witness.

On record, the cause of death of the deceased Sumithra and Vimal has not been established by the prosecution. Therefore, it is not possible for us to hold that the death of the deceased was due to the homicidal violence.

Though the prosecution had made an attempt to establish its case through the extra-judicial confession said to have been given by the accused, which is marked as Ex. P33, P.W.4, the Village Administrative Officer, had not supported the case of the prosecution. He was treated hostile. He had stated in his evidence that he was called to the Police Station by the Inspector of Police and at that time, the accused was present in the Police Station and he did not know what statement the accused gave. He admitted only his signature, which is marked as Ex. P2.

Though P.W.6 had deposed that on 13.12.2003 at about 6.00 a.m., he went to the house of the Village Administrative Officer - P.W.4 and the accused was present in the house and he gave a statement to the Village Administrative Officer and the Village Administrative Officer recorded the said statement, in which he had also signed, his evidence has been shattered in the cross-examination. In the cross-examination, he had stated that he went to the house of the Village Administrative Officer with one Murugesan and he was standing outside. After five minutes, the Village Administrative Officer called him and he asked him to sign in a paper. It is not known, who the said Murugesan is, and why he is not added as a witness. The evidence of P.W.6 is not so convincing to this Court. We also feel that it is very unsafe to place reliance on the evidence of P.W.6 alone and to convict the accused.

In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the accused in S.C. No. 102 of 2009 on the file of the Additional District Judge-cum-Presiding Officer, Special Court under Essential Commodities Act, Thanjavur, are set aside and the Appellant is acquitted of the charges and the fine amount paid, if any, is to be refunded to him. The Appellant is directed to be set at liberty forthwith if his custody is not required in connection with any other case.