Allowed

R.Suresh v. State Rep by

Madras HC28 Oct 2021CRL A/247/2020

Case brief

AI extract

What is this about?

In a criminal appeal against a life imprisonment conviction for murder under Section 302 IPC, the High Court found the trial court's reliance on contradictory eyewitness accounts unsafe. The Court allowed the appeal and acquitted the appellant due to discrepancies in witness testimonies and inconsistencies in the prosecution narrative.

What did the court decide?

The judgment and order convicting the appellant were set aside; the appellant was acquitted under Section 302 IPC; any fine paid was ordered to be refunded; the appellant was directed to be released.

R.Suresh Vs State Rep by — Murder and Culpable Homicide | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 28.10.2021

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Coram

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The Honourable Mr. Justice P.N.PRAKASH and The Honourable Mrs. Justice S.SRIMATHY

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Crl.A.No.247 of 2020

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Vs.

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State represented by The Inspector of Police, B-3, Fort Police Station, Chennai.

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... Respondent/Complainant

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Criminal Appeal filed under Section 373(2) Cr.P.C. against the judgment and order dated 29.11.2018 passed in S.C.No.364 of 2015 on the file of the Sessions Court, Mahila Court, (Mahalir Neethimandram), Chennai and to set aside the same.

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JUDGMENT

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(Delivered by P.N.PRAKASH, J.)

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This criminal appeal has been filed against the judgment and order dated 29.11.2018 passed in S.C.No.364 of 2015 on the file of the Sessions Court, Mahila Court, (Mahalir Neethimandram), Chennai and to set aside the same.

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The prosecution story runs thus:

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2.1 The deceased Swetha fell in love with the appellant, got married to him and they were blessed with two children viz., Sugan and Sujitha, aged about 6 and 5 years, respectively, at the time of the incident which took place on 27.08.2015. They were living in Kannagi Nagar. The appellant used to get drunk,

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not go to work, beat his wife and was a parasite on her. Therefore, unable to withstand his torment, Swetha left his company and joined her mother Ilamalli (PW1) and sister Somasundari (PW3), who were pavement dwellers opposite the Reserve Bank of India (for brevity “the RBI”).

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2.2 Swetha and her sister Somasundari (PW3) were working as dishwashers and cleaners in a nearby canteen. The appellant used to come frequently to meet Swetha and quarrel with her asking her to join him. However, Swetha refused to join him and the same appears to have irked the appellant.

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2.3 It is alleged that on 27.08.2015, around 9.00 a.m., when Swetha went for her bath to a secluded place near the RBI, the appellant strangulated her with her dupatta (M.O.1) and caused her death. When Ilamalli (PW1), mother of Swetha, went to the place of occurrence, she saw Swetha on the ground and when she asked the appellant, he told her (PW1) that he killed Swetha and pushed Ilamalli (PW1) and ran away.

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2.4 Swetha was rushed by Somasundari (PW3) to Rajiv Gandhi Government General Hospital, where, she was examined by Dr.Sasidaran (PW11) at 12.45 noon and he declared her as 'brought dead'. When Dr.Sasidaran (PW11) enquired Somasundari (PW3), the latter told him that Swetha was found wrapped in a tarpaulin near the bath tub, where, she normally goes for her bath and therefore, they had brought her for treatment.

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2.5 Dr.Sasidaran (PW11) made these entries in the accident register (Ex-P9) and since he found injuries around the neck of Swetha, the body was sent to the mortuary for further action.

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2.6 On a written complaint given by Ilamalli (PW1), Duraipandian (PW12), Inspector of Police, registered a case on 27.08.2015 at 14.30 hours in B-3, Fort Police Station Crime No.58 of 2015 under Section 302 IPC against the appellant and took up the investigation of the case.

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2.7 The Investigating Officer went to the place of occurrence and prepared the observation mahazar (Ex-P12) and rough sketch (Ex-P11) in the presence of witnesses Murugan (PW7) and Prasanth (PW8).

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2.8 The Investigating Officer arrested the appellant on 28.08.2015 at 5.00 a.m. near the RBI subway and recorded his confession statement. Based on the disclosure statement of the appellant, the Investigating Officer went to the place of occurrence and seized the dupatta (M.O.1) under the cover of a mahazar (Ex-P6) at 6.20 hours on 28.08.2015 in the presence of witnesses Appu (PW9) and Dhayalan (not examined).

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2.9 Thereafter, the Investigating Officer conducted inquest over the body of Swetha in the mortuary and the inquest report was marked as Ex-P13.

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2.10 Dr.Julius (PW10) performed autopsy on the body of Swetha and issued the postmortem certificate (Ex-P7). After obtaining the viscera report (Ex-P8), Dr.Julius (PW10) gave his final opinion as to the cause of death of Swetha, which reads as follows:

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“The deceased would appear to have died of asphyxia due to neck compression (strangulation).”

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2.11 After examining witnesses and collecting the various reports, the Investigating Officer completed the investigation and filed a final report in P.R.C.No.87 of 2015 before the VII Metropolitan Magistrate Court, Chennai.

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2.12 On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.364 of 2015 and was made over to the Sessions Court, Mahila Court, (Mahalir Neethimandram), Chennai, for trial.

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2.13 The trial Court framed a charge under Section 302 IPC and when questioned, the appellant pleaded “not guilty”.

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2.14 To prove the prosecution case, the police examined twelve witnesses and marked thirteen exhibits and one material object.

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2.15 When the appellant was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. From the side of the appellant, no witness was examined nor any document marked.

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2.16 After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 29.11.2018 in S.C.No.364 of 2015, convicted the appellant of the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo six months simple imprisonment.

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2.17 Aggrieved by the aforesaid conviction and sentence, the appellant has preferred the present appeal.

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Heard Mr.V.Parthiban, learned counsel for the appellant and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent/State.

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This is a case based on circumstantial evidence, inasmuch as, no witnesses had actually seen the appellant strangulating Swetha.

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Ilamalli (PW1), in her evidence, has stated that Swetha was her third daughter; she fell in love with the appellant, got married to him and has two children; the appellant and Swetha were living in Kannagi Nagar and Swetha suffered a lot at the hands of the appellant and so, she left the company of the appellant and came to live with her in the pavement near the RBI subway; on 27.08.2015, Swetha went for her bath around 9.00 a.m. to a nearby bath tub located in a secluded place and since she did not return till 12.00 noon, she (PW1) went in search of Swetha and there, she saw the appellant putting the dupatta (M.O.1) around her daughter's neck and dipping her head in the bath tub; on seeing this, she hollered, hearing which, her relatives and others came to the spot; thereafter, Swetha was taken to the Rajiv Gandhi Government General Hospital, where, she was declared by the doctor, who examined her, as 'brought dead'.

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In the cross-examination, Ilamalli (PW1) has stated that in her complaint (Ex-P1) as well in her police statement, she has stated that she saw the appellant immersing Swetha's face into the bath tub, whereas, the Investigating Officer has stated that Ilamalli (PW1)has not stated so. Thus, it is seen that this fact appears to be a gross exaggeration.

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Baskar (PW2), father of Swetha, in his evidence, has merely stated that he heard about the incident from his wife (PW1) and daughter (PW3) and he has not even stated that the appellant was present near the bath tub at the relevant point of time.

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Somasundari (PW3), in her evidence, has stated that she and Swetha were working in a nearby canteen as dish washers and on 27.08.2015, Swetha went for her bath around 9.00 a.m., but, did not return for a long time; since she heard her father hollering, she went near the bath tub along with her mother (PW1), where, she saw the appellant, who pushed her mother and kicked her (PW3) on her belly and ran away. If this had actually occurred, it is not known as to why this witness (PW3), who had taken Swetha to the Rajiv Gandhi Government General Hospital, stated to Dr.Sasidaran (PW11) that she found the body of Swetha wrapped in a tarpaulin near the bath tub.

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Yagavalli (PW4), who is also a pavement dweller, in her evidence, has stated that when Swetha went for her bath, the appellant also went behind her and soon, a boy came to her and stated that the appellant is attempting to commit suicide by hanging.

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Similarly, Kalaivani (PW6), another pavement dweller, has, in her evidence, stated that she saw the appellant trying to commit suicide by hanging near the bath tub.

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Anjali (PW5), who is also a pavement dweller, has stated in her evidence that when she went along with others to the bath tub, she found the body of Swetha wrapped in a tarpaulin and the police came and took the appellant in custody.

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Kalaivani (PW6), in her evidence, has also stated that they had caught hold of the appellant and handed him over to the police immediately. Similarly, Yagavalli (PW4), in her evidence, has also stated that she, along with the others, apprehended the appellant and handed him over to the police.

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The most vital aspect in this case is, though the FIR (Ex-P10) is said to have been registered by the police at 2.30 p.m. on 27.08.2015, the same has reached the jurisdictional Magistrate only at 1.10 p.m. on 28.08.2015, as could be seen from the endorsement thereon. Thus, the accident register (ExP9), which is the earliest document in this case, states that the body of Swetha was found with a tarpaulin wrapped around it at 12.10 p.m. on 27.08.2021 near the bath tub.

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Ilamalli (PW1) has stated that she saw the appellant immersing the face of Swetha in the bath tub and causing her death. Somasundari (PW3) has stated that the appellant kicked her and ran away, whereas, Yagavalli (PW4) and Kalaivani (PW6) have stated that they found the appellant attempting to commit suicide by hanging and they handed him over to the police immediately.

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In the light of such overwhelming contradictions in the testimonies of Ilamalli (PW1), Somasundari (PW3), Yagavalli (PW4) and Kalaivani (PW6), it will be unsafe to confirm the conviction and sentence imposed on the appellant by the trial Court.

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In the result, this criminal appeal is allowed by setting aside the judgment and order dated 29.11.2018 passed in S.C.No.364 of 2015 on the file of the Sessions Court, Mahila Court, (Mahalir Neethimandram), Chennai and the appellant stands acquitted of the charge under Section 302 IPC. Fine amount, if any, paid by the appellant, shall be refunded to him. The appellant shall be released, if not required in any other case.

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Sd/-

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Assistant Registrar(CS IX)

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//True Copy//

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Sub Assistant Registrar

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nsd

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1.The Sessions Judge, Mahila Court, (Mahalir Neethimandram), Chennai.

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2.The Principal District Judge, City Civil Court, Chennai.

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3.The VII Metropolitan Magistrate, Chennai.

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4.-Do- Thro The Chief Metropolitan Magistrate, Egmore, Chennai-8.

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5.The Inspector of Police, B-3, Fort Police Station, Chennai.

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6.The Director General of Police, Mylapore, Chennai.

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7.The Superintendent of Police, Central Prison-I, Puzhal, Chennai.

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8.The Public Prosecutor, Madras High Court, Chennai – 600 104.

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Copy to

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The Section Officer, Criminal Section, High Court, Madras-104.

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+1cc to Mr.V.Parthiban, Advocate Sr.56408

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Crl.A.No.247 of 2020

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nrl[co] srg 16/11/2021

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R.Suresh v. State Rep by

Case brief

What is this about?

What did the court decide?

R.Suresh v. State Rep by

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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