Dismissed

A.Manikanan @ Mani v. the State Rep by

Madras HC2 Nov 2016CRL A/378/2016

Case brief

AI extract

What is this about?

This court dismissed a criminal appeal filed by an accused convicted of murder and robbery. The High Court upheld the trial court's findings regarding motive, recovery ofmaterials pursuant to confession, and forensic evidence, concluding no grounds existed for interference.

What did the court decide?

Criminal Appeal dismissed, confirming the Judgment of conviction and sentence dated 21.01.2016.

A.Manikanan @ Mani Vs the State Rep by — Murder and Culpable Homicide | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 02.11.2016

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CORAM:

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THE HONOURABLE MR.JUSTICE A.SELVAM and THE HONOURABLE MR.JUSTICE P.KALAIYARASAN

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Crl.A.No.378 of 2016

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A.Manikanan @ Mani ... Appellant/Accused

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Vs.

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The State Rep. by its The Inspector of Police, Kannankurichi Police Station, Salem District. ...Respondent/Complainant

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Prayer : Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure, against the Judgment of conviction and sentence dated 21.01.2016 passed in S.C.No.42 of 2013 on the file of the I Additional Sessions Judge, Salem. For Appellant : Mr.Ananthanarayanan, Senior Counsel for Mr.E.C.Ramesh For Respondent : Mr.E.Raja Additional Public Prosecutor

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JUDGMENT

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(Judgement of the Court delivered by P.KALAIYARASAN, J)

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This Criminal Appeal filed by the second Accused is directed against the Judgment of the learned I Additional Sessions Judge, Salem, convicting and sentencing the accused 1 and 2 to life imprisonment, 3 years RI and 7 years RI with fine and default sentence as mentioned in the Judgment for offences under Sections 302, 201 r/w 302 and 392 IPC.

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The case of the prosecution in nutshell are as follows :

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(i) The deceased Kulanthai Gounder was working as a watchman in the construction site of the new building belonging to witness Parthasarathy in the same area, where he was residing. On 23.08.2010, during night hours, when accused 1 and 2 came to the construction site to consume liquor, Kulanthai Gounder objected and they challenged that they would cut him into pieces. The deceased used to go for work at 6 p.m and return

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home at 8 a.m. He informed about the threat by the accused 1 and 2 to his son, P.W.1, Ezhumalai and also his brother's son P.W.8, Periyasamy. P.W.1 suggested not to go for work. The deceased told him that the accused might not have that much of guts and went as usual for the work.

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(ii) P.W.4, Yuvaraj residing in the same area, went out for natural call at 6 a.m on 25.08.2010. He saw a body without head, hands and legs near a thorn bush in a land on his way. He identified from the shirt on the body that the body would be of Kulanthai Gounder. He informed P.W.1, the son of the deceased. P.W.1 rushed to the place and confirmed that it is the body of his father. He also informed his brothers, sisters and relatives. He also searched for other parts of the body of his father. He found the head in the basement pit of one Viswanathan on the way to Motankurichi and one leg and hand were found near Mannarpalayam branch road.

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(iii) Then he went to the police station and lodged the complaint, Ex.P.1 with the Sub-Inspector of Police, P.W.28. He registered F.I.R and sent the copy to the Inspector and the Judicial Magistrate. P.W.31, Mr.Durai, Inspector of Police, on receipt of information about the murder, reached the police station and took up the case for investigation. He went to the spot, where the body without head, hand and legs were lying, prepared observation mahazar, Ex.P.2 at 10.15 a.m. He also prepared rough sketch, Ex.P.31. He conducted inquest in the presence of panchayatdars and prepared Inquest Report, Ex.P.32. The he sent the body to the Hospital. Thereafter, he proceeded to the scene of crime at 14.45 Hrs and prepared observation mahazar, Ex.P.3. He also drew a rough sketch, Ex.P.34. He also recovered blood stained soil, sample soil, blood stained cot leg, blood stained towel, blood stained Dothi (M.O.6 to M.O.8 and M.O.1 and 2) under mahazar, Ex.P.4.

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(iv) Similarly, as per the orders of the Assistant Commissioner of Police, P.W.27, Mr.Kennedy, Inspector of Police went to the spot, where left leg was lying and prepared observation mahazar, Ex.P.6 in the presence of witnesses. He drew rough sketch, Ex.P.22. He conducted inquest in the presence of panchayatdars and prepared Inquest Report, Ex.P.23. Another Inspector of Police, P.W.29, Mr.Murugan went to the Mannarpalayam branch road, where left hand was lying and prepared observation mahazar, Ex.P.7 and rough sketch, Ex.P.25. He conducted inquest in the presence of panchayatdars and prepared Inquest Report, Ex.P.26. Another Inspector of Police, P.W.30, Mr.Ashokan had been to the place where the head was laid and prepared observation mahazar, Ex.P.5 and rough sketch, Ex.P.28. He also conducted inquest over the head and prepared

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Inquest Report, Ex.P.29.

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(v) The Investigating Officer arrested the first accused at 6 a.m on 26.08.2010 near Thamarai Nagar branch road and recorded his confession statement voluntarily given by him in the presence of P.W.15, Mr.Thiruvalluvan, Village Administrative Officer and his assistant. The admissible portion of the confession statement is Ex.P.8. A1 took the Investigating Officer and the witnesses to the well belonging to one Palanisamy. From the well shown by A1, right leg and right hand were recovered through Diver one Rajalingam. He prepared observation mahazar and rough sketch, Ex.P.14 and Ex.P.37. He conducted inquest over the said leg and hand in the presence of panchayatdars and prepared Inquest Report, Ex.P.38 and Ex.P.39. Then he sent the said right hand and right leg to the Hospital through Head Constable. A1 took the Investigating Officer and other witnesses to a nearby maize cane bunch and took out the knife M.O.10 from the cane bunch and handed over to the Investigating Officer. The Investigating Officer recovered the same under Ex.P.9 in the presence of same witnesses.

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(vi) The Investigating Officer, P.W.31 also conducted inquest in the presence of panchayatdars on the full body kept in the mortuary at the Government Hospital. The Inquest Report is Ex.P.42.

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(vii) After inquest over the full body, he requested the Doctor to conduct Autopsy. P.W.26, Doctor has conducted postmortem and found the following injuries :

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"1. A complete decapitation at the level of C5C6 Cervical Vertebrae with everted, regular and clean cut edges - separating trunk from head and neck totally - exposing the severed muscles, bones and neuro-vascular bundle. The distal trunk and allignes well with the proximal neck end.

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A wide open, oblique, bevelled cut injury seen extending left temple to left parietal region of scalp measuring 12 x 2 cms x Bone deep. The edges are regular, acute angled and everted with adherence of blood clots.

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A wide open, oblique, bevelled cut injury seen over the right side of forehead measuring 4 x 1 cms x bone deep. The edges are regular, acute angled and everted with adherence of blood clots.

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A wide open, oblique cut injury seen over the left cheek measuring 2 x 1 cms x bone deep. The edges are regular, acute angled and everted

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with adherence of blood clots.

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A wide open, oblique cut injury seen over the right cheek measuring 4 x 1 cms x bone deep. The edges are regular, acute angled and everted with adherence of blood clots.

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A wide open, oblique cut injury seen over the upper aspect of left side of neck - measuring 7 x 2 cms x muscle deep. The underlying muscles and neuro vascular bundle are cut thro and thro. The edges are regular, acute angled and everted with adherence of blood clots.

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A wide open, oblique cut injury seen over the front of middle of neck above the level of thyroid cartilage measuring 7 x 2 cms x muscle deep. The underlying muscles trachera and neuro-vascular bundle are cut thro and thro. The edges are regular, acute angled and everted with adherence of blood clots.

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A wide open, oblique cut injury seen over the right side of upper chest measuring 6x2 cms x muscle deep. The edges are regular, acute angled and everted with adherence of blood clots.

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A Thro and thro cut injury seen over left ear lobule measuring 2 x 0.5 cms x thro and thro. The edges are regular, acute angled with adherence of blood clots.

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A wide open, oblique cut injury seen over the occipital region of scalp measuring 6 x 2 cms x muscle deep. The edges are regular, acute angled and exerted with adherence of blood clots.

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A wide open, oblique cut injury seen over the chin measuring 3 x 2 cms x muscle deep. The edges are regular, acute angled and everted with adherence of blood clots.

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Crescentic nail mark abrasion seen over the front of neck each measuring 1 x 0.5 cms - three on the right side and one on the left side o/d neck dark reddish brown contusion seen over left side of neck measuring 4 x 3 cms x 0.5 cms, right side of neck 5 x 3 x 0.5 cms. The underlying muscles appeared contused and haemorrhagic. Hyoid bone - intact.

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Fracture body of sternum with sub-sternal contusion 2 x 1 x 0.5 cms.

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O/D head dark reddish brown contusion seen

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over occipital region of scalp 12 x 4 x 0.5 cms. Fissured fracture of occipital bone extending to bi-temporal bones - 22 cms in length. Extra, dural, sub-dural haemorrhance seen over right cerebral hemisphere. SubArachnoid haemorrhage seen over the base of brain. Comminuted fracture base of skull. All the above injuries are antermortem in nature. Other findings 1. O/D Head : Vide injury column. Dura - torn. Brain C/S Pale.

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O/D Neck : Neck structures vide injury column. Hyoid bone - intact.

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O/D thorax : lungs - C/s pale heart, normal in size, chambers empty, valves and coronaries patent, mycardium normal, great vessels patent. 4. O/D abdomen : Stomach 350 gms of undigested cooked rice particles with no specific smell. Mucosa C/s. Pale. Liver, spleen and kidneys C/s. pale. Bladder empty. Genitalia no injuries made out. Pelvis - intact.

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Empty genitalia no injuries made out pelvis intact.

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Viscera preserved and sent for chemical analysis. Skin and sub-cutaneous bits taken from each amputated part, hair and fermur were sent for DNA comparative analysis. Opinion :

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Cause of death : Died of effects of shock and haemorrhage due to multiple cut injuries sustained.

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Evidence of attempted throttling seen prior to death.

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Time since death - 36 + 4 hours prior to autopsy."

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The Doctor opines that the deceased would have died due to effects of shock and haemorrhage due to multiple cut injuries sustained 36+4 hours prior to autopsy and he has seen evidence of attempted throttling prior to death.

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(viii) After inquest over the full body, A1 took the Investigating Officer and the witnesses to his house and took out his blood stained pant and shirt kept beneath the stair case and handed over the same to the Investigating Officer. He recovered M.O.11 and M.O.12 under mahazar, Ex.P.10 in the presence of same witnesses. Then the Investigating Officer brought the accused and the properties to the police station. The Head Constable handed over the clothes over the dead body after postmortem to the Investigating Officer and he received

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the same under Form-95.

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(ix) Since A2 surrendered before the Judicial Magistrate Court, the Investigating Officer moved an application for police custody. A2 was given police custody on 06.09.2010. The Investigating Officer brought A2 to the police station at 16.30 Hrs on 06.09.2010 and he recorded his confession statement voluntarily given by A2 in the presence of P.W.15 and his assistant. The admissible portion of the confession statement is Ex.P.11. A2, took the Investigating Officer and witnesses to his house and took out the blood stained jeans pant and shirt from a hidden place in front of a thatched house. The Investigating Officer recovered the above said M.O.13 and M.O.14 under mahazar, Ex.P.12 in the presence of the same witnesses. He then took the Investigating Officer and the witnesses to the foot of the yercaud hill and took out the TVS 50-two wheeler, knife and gunny bag (M.O.15 to M.O.17) from a bush near a water tank.

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(x) The Investigating Officer recovered the same in the presence of the said witnesses under mahazar, Ex.P.13. He sent the request letter to the Judicial Magistrate to send the properties for chemical analysis. Analysis to P.W.20, the Scientific Assistant, the Forensic Science Department examined and sent the Chemical Examination Report as well as Serologist Report, Ex.P.20 and Ex.P.48. The Investigating Officer recorded the statement of witnesses and after completion of investigation, he laid charge sheet.

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The learned Sessions Judge questioned the accused under Section 313 (1) (b) Cr.P.C as to the incriminating evidence appeared against them and they denied the same. During trial, the prosecution examined 31 witnesses and marked 48 Exhibits, apart from 19 material objects.

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The learned Sessions Judge, after analysing the evidence found both the accused guilty for the offences and convicted and sentenced them as aforesaid. Against the said conviction and sentence, A2 has come forward with this Criminal Appeal.

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The learned Senior counsel appearing for the appellant contends that there is absolutely no motive between the accused and the deceased; that the evidence of P.W.2 is not trustworthy, as he does not even know the registered number of TVS 50 alleged to have been owned by him; that evidence of P.W.13 and P.W.14 are also not reliable as they have not identified the knife said to have been possessed by the accused; that there is no definite evidence that the appellants and deceased were last seen together; that blood stain in M.O.10 and M.O.16 is not mentioned in the mahazar and therefore, the benefit of doubt is to be given to the appellant / accused.

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The deceased was working as watchman in the construction site belonging to P.W.10, Parthasarathy in the same area, where he was residing. In the same construction site, P.W.11 was working as watchman prior to the deceased Kulanthai Gounder. No doubt P.W.11 was treated as hostile. It is well settled that the evidence of hostile witness need not be thrown out in toto. He had not supported the version of the prosecution that the deceased informed him about the threat on the deceased by the appellant / A2 with another accused and therefore, he was treated as hostile. P.W.11 categorically says that when he was working as watchman, the appellant (A2) along with other accused came at 12.30 and 1.30 mid night on 2 days and asked him why he had not slept and threatened him to do away. He also says that immediately after the said threat he handed over the key to the owner Parthasarathy and left the job of watchman. The above witness was not cross-examined by the appellant / A2. There is absolutely no motive for this witness to depose against the appellant / A2 and his evidence is trustworthy and believable. It is clear from the evidence of P.W.11 that the appellant / A2 threatened the former watchman of the same construction site, which made him to leave the job.

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P.W.1 the son of the deceased has deposed that his deceased father on 24.08.2010 informed him that the appellant / A2 along with other accused came to the construction site previous night to consume liquor and when he objected he was threatened to be cut into pieces by them. Immediately after seeing the body, he lodged the compliant, Ex.P.1 at 8.30 a.m on 25.08.2010 and the same also reached the Judicial Magistrate Court on the same day at 11.30 a.m. In the complaint itself, P.W.1 mentioned the names of the appellant / A2 and another accused and about the threat they made against the deceased on the previous day night, i.e., on the night of 23.08.2010. Thus the evidence of former watchman, P.W.11 and P.W.1 establishes the motive of the appellant / A2 along with other accused as against the deceased that they used to threat the watchman of the construction site and took vengeance against the deceased as he objected to take liquor in the site.

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P.W.15, the Village Administrative Officer in his evidence says that the appellant / A2 gave confession statement in his presence and pursuant to the confession statement, he took the Investigating Officer and witnesses to his house and handed over the blood stained pant and shirt, M.O.13 and M.O.14 kept under the stair case. He further says that the appellant / A2 took them further to the foot of the yercaud hill and took out the knife, gunny bag kept in a bush and also the TVS 50 vehicle (M.O.15 to M.O.17) and handed over to the Investigating

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Officer. The evidence of P.W.15 could not be shattered in any way during cross-examination. It is also pertinent to note that when the appellant / A2 was questioned as to the incriminating evidence about the recovery of the above material objects from him, he gave only evasive reply saying as false. There is no specific denial as to the recovery of the above material objects from A2, pursuant to his confession statement. There is not even specific suggestion denying the recovery of the above material objects during cross-examination of either P.W.15, mahazar witness or the Investigating Officer. This Court does not see any reason to disbelieve the evidence of mahazar witness P.W.15 and also the Investigating Officer as to the recovery of the above said material objects through the appellant / A2 pursuant to his confession statement. Thus the prosecution has established the recovery from the appellant, pursuant to his confession. The material objects, namely pant, shirt and bill hook recovered from A2 were sent for chemical analysis. The Serologist Report, Ex.P.48 discloses that human blood was detected on the material objects recovered from the appellant / A2. The appellant / A2 has not explained how the human blood is found on his pant and shirt and also the bill hook handed over by him. This clearly establishes his involvement in the crime.

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The learned Senior counsel appearing for the appellant contended that the observation mahazars, Ex.P.12 and Ex.P.13 do not mention about the blood stain in the material objects. But in Ex.P.12 it is found that blood stain in the pant and shirt are clearly mentioned, whereas in Ex.P.13, mahazar, blood stain in the knife has not been mentioned. Non-mentioning of the blood stain in the mahazar is not fatal, as the Serologist Report of Forensic Department depicts detection of human blood on the knife recovered from the appellant / A2. The contention of the appellant that there is no evidence that appellant was last seen together with the deceased is not material in this case. The prosecution has proved the guilt through acceptable evidence as to the circumstances of motive, recovery pursuant to confession and detection of blood in the material objects recovered from appellant / A2.

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As already pointed out, TVS 50 vehicle was also recovered pursuant to the confession statement of the appellant / A2. P.W.2 says in his evidence that when he was coming in TVS 50, the appellant / A2 along with other accused threatened and took away the vehicle. No doubt he is not in a position to tell the registered number and no document has been filed to show his ownership. But he says that he painted the posture of the party leader and party flag he belonged in the two wheeler and thus he identified his vehicle. The appellant / A2 and another accused were residents of the same locality where

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P.W.2 is residing. Since appellant and another accused are of the same area and though P.W.2 was threatened and his vehicle was taken away, he did not prefer any complaint to the police. That apart, the evidence of P.W.2 cannot be disbelieved only for the reason that he could not remember the registration number of the vehicle and non-production of the proof of ownership, when the appellant / A2 who handed over the vehicle has not explained how he had been in possession of the same. Therefore, the prosecution has established that the vehicle was robbed from P.W.2. The prosecution has also proved the screening of evidence by taking away the body from scene of crime and placed the pieces of body in several places through the aforementioned evidence.

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Thus, the trial Court has rightly found the appellant / A2 guilty of the offences, after analysing the evidence and this Court does not find any reason to interfere with the conviction and sentence imposed on the appellant and accordingly, the criminal appeal is liable to be dismissed.

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In fine, this Criminal Appeal is dismissed, confirming the
Judgment of conviction and sentence, dated 21.01.2016 imposed on
the appellant / A2 in S.C.No.42 of 2013 on the file of the I
Additional Sessions Judge, Salem.
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
tsvn
To
1. The I Additional Sessions Judge
Salem.
2. The Inspector of Police,
Kannankurichi Police Station,
Salem District.
3 The Judicial Magistrate No.IV, Salem
4 -do- Thro The Chief Judicial magistrate, Salem
5 The District Collector, Salem

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6 The Director General of Police, Mylapore, Chennai 4

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7 The Superintendent of Police, Salem

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8 The Superintendent, Central Prison, Coimbatore

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The Public Prosecutor High Court, Madras.

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nrjk(CO) md (18/11/2016)

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Crl.A.No.378 of 2016

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A.Manikanan @ Mani v. the State Rep by

Case brief

What is this about?

What did the court decide?

A.Manikanan @ Mani v. the State Rep by

Case brief

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