Manoharan vs State by Inspector of Police

M. Karpagavinayagam, J.—Manoharan, the appellant, was convicted for the offence u/s 302 I.P.C. and sentenced to undergo life

imprisonment and to pay a fine of Rs. 3,000/-, in default to undergo three months simple imprisonment. Challenging the same, this appeal has been

filed.

The facts leading to the conviction are as follows:

(a) Manoharan, the accused married the deceased Kasthuri 11 years back. Out of their wedlock, three children were born. The accused is

working as Assistant in the Office of Sub Registrar at Chinna Salem. Both the accused and deceased along with their children were living at

Ulundurpet. There were frequent quarrels between the deceased and the accused.

(b) On 11.07.2000 morning, as usual, the accused left his house and went to Chinna Salem to attend his office work. On the same day at about

1.30 PM., the deceased left Ulundurpet and got into the bus for Villupuram, where the parents reside, to purchase sarees for her brother''s

marriage. At that point of time, the accused, who was working in the Sub Registrar Office at Chinna Salem, left the office and came to Villupuram

and took the deceased in a motor cycle and went to Pidagam Village, which is 6 kms.away from Villupuram. There, he committed murder by

attacking her with a wooden log. Then, he went back to his office to attend the work.

(c) When the Village Assistant found the dead body in the place, he reported the matter to P.W.1, the Village Administrative Officer. The Village

Administrative Officer came to the scene and noticed the dead body of the deceased and was able to find out the identity of the deceased from the

articles contained in a hand bag, which was found near the dead body, and gave a report to the Inspector of Police, P.W.32.

(d) P.W.32 originally registered the case on ''suspicious death'' u/s 174 of Criminal Procedure Code. He came on the same day, i.e. on

11.07.2000 at about 4.30 PM and conducted the inquest.

(e) P.W.15 Dr. Sumathi conducted post mortem and gave an opinion about the death under Ex.P-14 post-moretem certificate.

(f) On the basis of the post-mortem certificate to the effect that the death was due to the head injury, the offence was altered into one u/s 302 IPC

on 18.07.2000. On the very same day, the accused was arrested.

(g) P.W.32 examined P.W.24 Sekar and P.W.25 Babu, who stated that the accused was last seen in the company of the deceased on

11.07.2000 near the place of occurrence. On 24.07.2000, P.W.32 gave a requisition to record statement u/s 164 of Cr.P.C. from P.Ws.24 and

Accordingly, statements u/s 164 of Cr.P.C. were recorded on 27.07.2000. P.W.32 obtained police custody of the accused on 31.07.2000.

(h) In the meantime, P.W.32 requested for conducting identification parade. Accordingly, on 31.07.2000, P.W.29, the Judicial Magistrate

conducted the identification parade, in which P.W.24 alone identified the accused.

(i) P.W.32 examined other witnesses and recovered the letters Exs.P-7 to P-10 written by the deceased to her parents regarding the torture meted

out at the hands of the accused. An opinion was obtained from the Handwriting Expert on the basis of the Diary M.O.7 seized from the house of

the deceased.

(j) After completion of the investigation, the charge sheet was filed against the accused u/s 302 I.P.C.

(k) During the course of trial, on the side of prosecution, P.Ws.1 to 33 were examined; Exs.P-1 to P-37 were filed and M.Os.1 to 12 were

marked.

(l) The accused denied having participated in the occurrence, while he was questioned u/s 313 of Cr.P.C. According to him, he was in the office

from 10.00 AM to 5.30 PM at Chinna Salem. On his side, Exs.D-1 to D-19 were marked and one witness was examined. D.W.1, the Junior

Assistant, Sub Registrar''s Office was examined to show that the accused was in the office throughout.

(m) The trial Court relied upon the evidence adduced by the prosecution and convicted the accused for the offence u/s 302 IPC and sentenced

him as aforesaid. Aggrieved by the said conviction and sentence, the accused has filed this appeal.

We have heard Mr. R. Shanmuga Sundaram, learned Senior Counsel for the appellant as well as the learned Additional Public Prosecutor. We

have also gone through the entire records.

According to the prosecution, the accused / husband took the deceased to the scene place on 11.07.2000 at 2.00 PM and attacked her by

inflicting injury on the head and caused her death. The prosecution proposed to place materials to show that even though the accused attended the

office on 11.07.2000 at Chinna Salem, at 1.00 PM he left the office and came to Villupuram and took the deceased to a secluded place, where

the accused attacked her causing the death.

Admittedly, there is no eye witness. The entire case rests upon the circumstantial evidence. There are two sets of evidence, which have been

placed by the prosecution to connect the accused with the crime in question. The first set of evidence is relating to the letters written by the

deceased to her parents Exs.P-7 to P-10 and the evidence of P.W.4 Prabhu, brother, P.W.6 Jayaraman, father, P.W.8 Ananthi, sister, P.W.9

Poongothai, another sister and P.W.10 Ponnusamy, the father-in-law of P.W.9 to speak about the torture meted out to the deceased at the hands

of the accused. The second set of evidence is relating to the last seen of the accused in the company of the deceased spoken to by P.Ws.24 and

25.

There is no difficulty in coming to the conclusion that the fact that the deceased was tortured to the core at the hands of the accused has been

sufficiently established by the letters as well as through the oral evidence of father, brother and sisters. The Handwriting Expert''s opinion also

would clearly reveal that those letters were written by the deceased to her relatives. Though some suggestions were put that those letters were not

written by the deceased, there is no serious challenge to those letters as nothing was produced on behalf of the defence that the handwriting in

those letters is not that of the deceased. Therefore, in our view, the first circumstance would clearly reveal that the deceased was tortured

continuously by the accused.

However, the above circumstance alone would not be sufficient to connect the accused with the crime. Therefore, let us see the second

circumstance, namely, the evidence of P.Ws.24 and 25, who saw the accused in the company of the deceased at or about the time of occurrence

near the scene place.

According to the prosecution, the occurrence took place on 11.07.2000 at 2.00 PM. P.W.2 Sekar would state that the deceased was found

lying in the scene near the road side where Pidagam road begins, with the injury on the head. Then, P.W.2 Sekar poured water into her mouth.

Within a few minutes, she died. The case was originally registered u/s 174 of Cr.P.C., on the complaint of Village Administrative Officer, P.W.1 to

P.W.32, Inspector of Police. But, P.W.32 did not take any steps to arrange for inquest to be conducted by the Executive Magistrate as

contemplated u/s 174 of Cr.P.C. However, the inquest was conducted by P.W.32 himself and some of the witnesses except P.W.2 were

examined. So, the evidence of these witnesses would indicate that somebody must have caused injuries on the deceased and before she died, that

person left the place.

It is the case of the prosecution, as indicated above, that P.Ws.24 and 25, the father and son had seen that the accused was in conversation

with the deceased in the scene place. P.W.32, on getting the post-mortem report stating that the deceased died of head injury, altered the offence

into one u/s 302 IPC. Immediately, the accused was arrested and sent for remand. Even though there is an evidence collected later through

P.Ws.24 and 25 with reference to the last seen, admittedly, there is no material whatsoever as against the accused that he only committed the

murder of the deceased. However, P.W.32 thought it fit to fix the accused as a culprit and sent him for judicial remand. Only on 23.07.2000, both

P.Ws.24 and 25 were examined. Admittedly, P.Ws.24 and 25 did not give any explanation as to why they have not given any such statement with

reference to the last seen either to the police or to the villagers.

As a matter of fact, the inquest was conducted by the Inspector of Police in the presence of officials and the villagers on 11.07.2000 itself at

4.30 PM. P.Ws.24 and 25 were examined only on 23.07.2000. There is no material to indicate as to what made these witnesses to come and give

a belated statement, that too after 12 days. Similarly, there is no material to indicate as to how P.W.32 had traced out these witnesses to collect

the evidence relating to the last seen alive theory.

It is true that P.Ws.24 and 25 have given statement u/s 164 of Cr.P.C. before the Judicial Magistrate on 27.07.2000. It is also true that

P.W.24 alone identified the accused in the identification parade conducted on 31.07.2000. Admittedly, when the accused was questioned by the

Judicial Magistrate after the identification parade was over, the accused complained to the Judicial Magistrate that he was shown to the witnesses

before the parade and as a matter of fact, both were going in a Police Van. Therefore, mere identifying the person in the parade, in the absence of

any acceptable evidence from these witnesses, viz., P.Ws.24 and 25 with reference to the last seen theory cannot give out a formidable material to

connect the accused with the crime in question.

We have gone through the evidence of P.Ws.24 and 25 in entirety. As indicated above, P.W.24 was able to identify the accused in the

parade, but P.W.25 could not and P.W.25 has given the reason as to why he was not able to identify because at that time, the accused was lying

on the ground when he saw the accused. As a matter of fact, P.Ws.24 and 25 would state that after immediately coming to know that the dead

body was in the scene place, they came and saw the dead body along with other villagers. That being so, there is no reason as to why they had not

given information about their having seen the accused lastly in the company of the deceased to any other person to the police at the time of inquest.

Further, the evidence of P.W.18, the Officer in Sub-Registrar Office would clearly indicate that P.W.32 had obtained a certificate from P.W.18

that the accused was there in the Sub Registrar office throughout from 10.00 AM to 5.00 PM. This was not marked by the prosecution. On the

other hand all the connected documents Exs.D-1 to D-19 were marked and D.W.1 was examined to prove the defence.

It is the case of the prosecution through P.W.7, the daughter of the deceased that she phoned up three times and talked to the accused when

he was in the office. It is not the case of the daughter that the accused was not available at that time. As a matter of fact, the accused tried to find

out the whereabouts of the wife by phoning up to P.W.6, the father of the deceased, P.W.4, the brother of the deceased and also P.Ws.8 and 9,

the sisters of the deceased. This has been admitted by these witnesses that the accused phoned up and enquired about the wife. As mentioned

above, the accused was available throughout even during the course of inquest.

In the light of the above factual aspects, we are not able to place reliance upon the evidence of P.Ws.24 and 25 and consequently, we are

constrained to hold that the prosecution has failed to prove its case as against the accused beyond reasonable doubt.

Therefore, the conviction and sentence imposed u/s 302 of I.P.C. on the appellant / accused are set aside and the appeal is allowed. Fine

amount, if paid, shall be refunded to the appellant. The bail bond executed by the appellant shall stand cancelled.