Allowed

Dipin @ Dinesh Kumar v. the Inspector of Police

Madras HC15 Nov 2021CRL A/350/2018

Case brief

AI extract

What is this about?

In these appeals against conviction and death sentences for manual strangulation, the High Court acquitted the appellants. The judgment held the conviction unsafe due to reliance on unreliable fingerprint chains, prosecution copy-pasting evidence in witness examinations, and lack of investigation into the presence of chilly powder suggesting a professional criminal.

What did the court decide?

Judgments of conviction and sentences dated 25.05.2018 set aside; accused acquitted of all charges; fines refunded; accused released forthwith if not required elsewhere.

Dipin @ Dinesh Kumar Vs the Inspector of Police — Murder and Culpable Homicide | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 15.11.2021

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CORAM

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THE HONOURABLE MR. JUSTICE P.N.PRAKASH AND THE HONOURABLE MRS. JUSTICE R.HEMALATHA

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CRL.A.NOS.350 & 402 OF 2018

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Dipin @ Dinesh Kumar .. Appellant/Accused No.2 in Crl.A.No.350 of 2018 Manikandan Karuppan .. Appellant/Accused No.1 in Crl.A.No.402 of 2018

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.Vs.

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State represented by The Inspector of Police, Tiruchengode Rural Police Station, Namakkal District. (Crime No.500/2016) .. Respondent/Complainant in both appeals

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Prayer in Crl.A.No.350 of 2018:

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Criminal Appeal filed under Section 374(2) Cr.P.C. against the judgment and order dated 25.05.2018 passed in Juvenile Special C.C.No.1 of 2017 on the file of the Sessions (Fast Track Mahila) Court/Children's Court, Namakkal and to set aside the same.

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Prayer in Crl.A.No.402 of 2018:

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Criminal Appeal filed under Section 374(2) Cr.P.C. against the judgment and order dated 25.05.2018 passed in S.C.No.19 of 2017 on the file of the Sessions (Fast Track Mahila) Court, Namakkal and to set aside the same.

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For Appellant in both appeals : Mr.P.Govindarajan For Respondent in both appeals : Mr.M.Babu Muthu Meeran Additional Public Prosecutor

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

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While Crl.A.No.350 of 2018 has been filed against the judgment and order dated 25.05.2018 passed in Juvenile Special C.C.No.1 of 2017 on the file of the Sessions (Fast Track Mahila) Court/Children's Court, Namakkal, Crl.A.No.402 of 2018 has been filed against the judgment and order dated 25.05.2018 passed in S.C.No.19 of 2017 on the file of the Sessions (Fast Track Mahila) Court, Namakkal and to set aside the same.

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For the sake of convenience, the parties will be referred to as per their ranking in Crl.A.No.402 of 2018.

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The prosecution story runs thus:

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3.1 The deceased Pavayee was seventy years old at the time of the incident on 18.10.2016. She was a widow and was living alone in her farm house and looking after her farm in Nedunkaadu village in Thiruchengode Taluk. Her only daughter Kannamal (PW3) was married to Thiyagarajan (PW1) and they have a son Dhavamurugan (PW2) and two daughters (not examined). Thiyagarajan (PW1) was living with his family nearby in Oojanai and he used to assist his mother-in-law in the farm work. Apart from that, Thiyagarajan (PW1) and Kannamal (PW3) would frequently call on Pavayee to enquire of her and also send food items to her off and on.

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3.2 While that being so, on 18.10.2016, around 7.00 p.m., Thiyagarajan (PW1) went to the farm house of Pavayee and found her dead on the coir cot with injuries around her neck. He also found chilly powder strewn all over the place and found the almirah ransacked. He immediately alerted his wife Kannamal (PW3) and son Dhavamurugan (PW2). Soon, news of Pavayee's death spread in the village. Umarani (PW4), Kandasamy (PW5), Thangavel (PW6), Suresh (PW7), Natesan (PW8) and Sudha (PW9), who are close relatives of Pavayee, came to the spot.

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3.3 Thiyagarajan (PW1) gave a written complaint (Ex-P1) narrating the facts observed by him, based on which, Madheswaran (PW17), Sub-Inspector of Police, registered a case in Thiruchengode Police Station Crime No.500 of 2016 on 18.10.2016 at 21.00 hours for the offences under Sections 380 and 302 IPC against unknown accused and prepared the printed FIR (Ex-P13), which reached the jurisdictional Magistrate at 3.30 p.m. on

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19.10.2016, as could be seen from the endorsement thereon.

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3.4 Investigation of the case was taken over by Palanisamy (PW18), Inspector of Police, who went to the place of occurrence at 10.00 p.m. on 18.10.2016 and prepared an observation mahazar (Ex-P3) and rough sketch (Ex-P14). He (PW18) conducted inquest over the body of Pavayee and prepared the inquest report (ExP15). He (PW18) requisitioned the services of the dog squad, photographer and finger print expert.

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3.5 After the inquest, the body of Pavayee was sent to the Government Hospital, Thiruchengode, where, Dr.Prathap (PW14) performed autopsy on the body of Pavayee and issued the postmortem certificate (Ex-P9) and final opinion (Ex-P10), wherein, he has opined as follows:

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“Opinion: The deceased would appear to have died of asphyxia due to manual strangulation (by hands).”

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3.6 On 20.10.2016, around 9.30 a.m., the Investigating Officer (PW18) arrested Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2)/juvenile and recorded their confession statements in the presence of Manivannan (PW12), Village Administrative Officer (for brevity “the VAO”) and Senthil (not examined).

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3.7 Based on the alleged disclosure of the Manikandan Karuppan (A1), the Investigating Officer (PW18) recovered a ½ sovereign of gold ring (M.O.1) from the residence of Manikandan Karuppan (A1) under the cover of a mahazar (Ex-P6). A motorcycle (M.O.4) that was owned by the Manikandan Karuppan (A1) was seized under the cover of a mahazar (Ex-P7). Similarly, on the police confession of Dipin @ Dinesh Kumar (A2), the Investigating officer (PW18), seized a ¾ sovereign of gold ring (M.O.2) with the initials “TK” under the cover of a mahazar (ExP6) in the presence of witnesses Manivannan (PW12), VAO and Senthil (not examined).

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3.8 During the course of investigation, it came to light that Dipin @ Dinesh Kumar (A2) was a juvenile and therefore, after completing the investigation, two final reports were filed, one against Manikandan Karuppan (A1) in P.R.C.No.3 of 2017 in the Court of Judicial Magistrate, Thiruchengode and the other against Dipin @ Dinesh Kumar (A2) before the Juvenile

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Justice Board (for brevity “the JJB”), Namakkal.

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3.9 On appearance of Manikandan Karuppan (A1) before the Judicial Magistrate, Thiruchengode, 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.19 of 2017 and was made over to the Sessions Court, (Fast Track Mahila Court), Namakkal, for trial.

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3.10 Since Dipin @ Dinesh Kumar (A2) was charged for a “heinous offence” as defined under Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity “the JJ Act”), the JJB, Namakkal, conducted a preliminary assessment under Section 15 (1) of the JJ Act and sent the case for trial to the Children's Court, Namakkal District, which is also the Fast Track Mahila Court (Sessions Level) of Namakkal District.

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3.11 As required by law, the learned Sessions Judge, conducted two trials, one in S.C.No.19 of 2017 against Manikandan Karuppan (A1) and the other in Juvenile Special C.C.No.1 of 2017 against Dipin @ Dinesh Kumar (A2).

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3.12 The trial Court framed charges separately for the offences under Sections 449, 451, 392 and 302 r/w 34 IPC against Manikandan Karuppan (A1) in S.C.No.19 of 2017 and similarly, charges were framed for the offences under Sections 449, 302, 451 and 392 IPC against Dipin @ Dinesh Kumar (A2) in Juvenile Special C.C.No.1 of 2017. When Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) were questioned separately, they pleaded “not guilty” of the charges.

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3.13 To prove the case, the prosecution examined eighteen witnesses and marked eighteen exhibits and four material objects in S.C.No.19 of 2017 and examined nineteen witnesses and marked eighteen exhibits and two material objects in Juvenile Special C.C.No.1 of 2017.

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3.14 When Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) were separately questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same. No witness was examined nor any document marked on behalf of Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2).

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3.15 After considering the evidence on record and hearing either side, the trial Court, by two separate judgments and orders both dated 25.05.2018 in S.C.No.19 of 2017 and Juvenile Special C.C.No.1 of 2017, has convicted and sentenced Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2), respectively, as follows:

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Accused	Provisi which c	on under onvicted	Sentence
Manikandan Karuppan (A1)	Section	449 IPC	Life imprisonment and fine of Rs.1,000/-, in default to undergo six months rigorous imprisonment.
	Section	302 r/w	Life imprisonment and fine of
	34 IPC		Rs.1,000/-, in default to undergo six months rigorous imprisonment.
	Section	451 IPC	One year rigorous imprisonment and fine of Rs.1,000/-, in default to undergo six months rigorous imprisonment.
	Section	392 IPC	Seven years rigorous
			imprisonment and fine of Rs.1,000/-, in default to undergo six months rigorous imprisonment.
Dipin @ Dinesh Kumar (A2)	Section	449 IPC	Seven years simple imprisonment and fine of Rs.500/-, in default to undergo three months simple imprisonment.
	Section	302 IPC	Seven years simple imprisonment and fine of Rs.500/-, in default to undergo three months simple imprisonment.
	Section	451 IPC	One year simple imprisonment and fine of Rs.500/-, in default to undergo three months simple imprisonment.
	Section	392 IPC	Five years simple imprisonment and fine of Rs.500/-, in default to undergo three months simple imprisonment.

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The aforesaid sentences were ordered to run concurrently.

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3.16 Challenging the above conviction and sentences, Manikandan Karuppan (A1) has filed Crl.A.No.402 of 2018 and Dipin @ Dinesh Kumar (A2) has filed Crl.A.No.350 of 2018 before this Court.

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On the orders of the Hon'ble Chief Justice under Rule 181 (vii) of the Criminal Rules of Practice, 2019, both the appeals were posted before us for hearing.

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Heard Mr.P.Govindarajan, learned counsel for Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent/State.

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At the outset, it may be necessary to mention that since the prosecution witnesses were common in both the cases, the trial judge appears to have examined the witnesses on the same day, but, separately, so that, they were not required to come again and again to give evidence. We appreciate the procedure adopted by the trial Judge, in this regard.

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It can be stated with a great degree of certainty that the prosecution has proved beyond a peradventure the fact that Pavayee was manually strangulated to death and her death was a homicide. The short point for consideration is whether Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) were the perpetrators of the crime.

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Thiyagarajan (PW1), Dhavamurugan (PW2), Kannamal (PW3), Umarani (PW4), Kandasamy (PW5), Thangavel (PW6), Suresh (PW7), Natesan (PW8) and Sudha (PW9), who are all close relatives of Pavayee, had not witnessed the occurrence at all. Admittedly, they came into the picture only after 7.00 p.m. on 18.10.2016, when Thiyagarajan (PW1) first noticed that Pavayee was dead. All the witnesses had uniformly stated that chilly powder was found strewn on the body of Pavayee as well on the floor.

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Admittedly, Manikandan Karuppan (A1) is the son of one Periyasamy, whose farm is adjacent to that of Pavayee.

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Kannamal (PW3), in her evidence, has stated that around 5.30 p.m. on 18.10.2016, she telephoned her mother Pavayee and at that time, her mother told her that Manikandan Karuppan (A1)

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and another boy have come to the house and was talking to her. In our opinion, this is a stark improvement, inasmuch as, even in the complaint (Ex-P1), there is absolutely no reference to this at all. Assuming for a moment that Manikandan Karuppan (A1) was talking to Pavayee around 5.30 p.m. on the fateful day, he being the owner of the farm adjacent to that of Pavayee, we cannot infer by that alone that he would have committed the alleged crime.

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Be that as it may, the learned Additional Public Prosecutor submitted that Rajini (PW13), Finger Print Expert, had come to the place of occurrence on 19.10.2016 and had lifted chance finger prints from the almirah, which tallied with the finger print of Manikandan Karuppan (A1), as could be seen from her evidence and as well her report (Ex-P8).

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We carefully examined the evidence of Rajini (PW13) and the report (Ex-P8).

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Rajini (PW13), in her evidence, has stated that she came to the place of occurrence on 19.10.2016 and lifted six finger prints from the almirah; thereafter, she received the finger prints of Thiyagarajan (PW1) and Manikandan Karuppan (A1) from the Investigating Officer (PW18) and on comparison, she found that five of the finger prints tallied with that of Thiyagarajan (PW1) and one finger print tallied with that of Manikandan Karuppan (A1). She (PW13) specifically stated that apart from lifting the finger prints from the almirah, she did not obtain the finger prints of the inmates of the house, whereas, the Investigating Officer (PW18), in his evidence, has stated that it was Rajini (PW13), who obtained the finger prints of Thiyagarajan (PW1), Kannamal (PW3) and other inmates.

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Be that as it may, coming to the impugned finger print, there is no scintilla of evidence to show as to who had obtained the finger print of Manikandan Karuppan (A1) after his arrest. Rajini (PW13) has merely stated that she received the finger prints of Thiyagarajan (PW1) and Manikandan Karuppan (A1) from the police and when she compared them with the chance finger prints, she found that five finger prints tallied with that of Thiyagarajan (PW1) and one tallied with that of Manikandan Karuppan (A1). The Investigating Officer (PW18), in his evidence, has not stated a word about taking the finger prints of Manikandan Karuppan (A1) after his arrest and sending them to the Finger Print Expert. Thus, in the absence of this crucial evidence, the important chain in the link gets snapped and

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therefore, we are unable to place reliance on the testimony of Rajini (PW13) nor on the finger print report (Ex-P8) to hold that the impugned finger print was that of Manikandan Karuppan (A1). As regards Dipin @ Dinesh Kumar (A2), finger print evidence is nil.

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Lastly, we are faced with the alleged recoveries of a ½ sovereign gold ring (M.O.1) from the house of Manikandan Karuppan (A1) after his arrest and a ¾ sovereign gold ring (M.O.2) from the house of Dipin @ Dinesh Kumar (A2) after his arrest.

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In the complaint (Ex-P1) that was given by Thiyagarajan (PW1), except saying that a ½ sovereign gold ring was found missing from almirah, no description of the ring was given. As regards the other gold ring, it is stated in the complaint (ExP1) that it is a ¾ sovereign gold ring with initials “TK”. Manivannan (PW12), VAO, who was the seizure witness for the recoveries of the gold rings (M.Os.1 & 2) from the residences of Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) has stated as follows in his examinations-in-chief:

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Chief examination in S.C.No.19 of 2017:

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“mjd; gpd;dh ; vjphpapd; xg;g [jy ; thf;FK :yj ;jpd ; mog;gilapy; eh';fs; midtUk; vjphp kzpfz;l fUg;gd ; tPl;ow ;F brd;wnghJ mth; jdJ tPl;oy ; ,Ue;J xU j';f nkhjpuk; 1-2 gt[d ; cs;sij vLj;J M$h;gLj ;jpdhh;/”

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Chief examination in Juvenile Special C.C.No.1 of 2017:

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“mjd; gpd;dh ; vjphpapd; xg;g [jy ; thf;FK :yj ;jpd ; mog;gilapy; eh';fs; midtUk; vjphp jpgPd; (v) jpndc;&Fkhh; tPl;ow ;F brd;wnghJ mth; jdJ tPl;oy ; ,Ue;J xU j';f nkhjpuk; 1-2 gt[d ; cs;sij vLj;J M$h;gLj ;jpdhh;/ ” ..... (emphasis supplied)

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Though we appreciated the learned trial Judge for adopting a pragmatic procedure in conducting the trial of both the cases simultaneously, we record our anguish for blindly cutting and pasting the examination-in-chief of Manivannan (PW12) in one case into the other. Manivannan (PW12), VAO, has not stated in his evidence that ¾ sovereign gold ring (M.O.2) with initials “TK” was recovered from the residence of Dipin @ Dinesh Kumar (A2).

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Therefore, merely based on such a shaky evidence relating to the alleged recoveries of two gold rings (M.Os.1 & 2) from the houses of Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2), we cannot infer that they were the authors of the crime.

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Yet another crucial aspect in this case is the presence of chilly powder on the body of Pavayee as well in the place of occurrence. This indicates that the crime has been committed by a professional criminal. There has been no investigation by the police on this crucial aspect linking it with Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2).

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In the result:

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i. Both the criminal appeals succeed and are accordingly allowed;

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ii.The judgments and orders dated 25.05.2018 passed in Juvenile Special C.C.No.1 of 2017 on the file of the Sessions (Fast Track Mahila) Court/Children's Court, Namakkal and S.C.No.19 of 2017 on the file of the Sessions (Fast Track Mahila) Court, Namakkal, are set aside;

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iii.Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) are acquitted of all the charges;

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iv.Fine amount, if any, paid by Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2), shall be refunded to them; and

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v. Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) shall be released forthwith, if they are not required in any other case.

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Sd/-

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Assistant Registrar(CS VIII)

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//True Copy//

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Sub Assistant Registrar

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nsd

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The Sessions Judge, Fast Track Mahila Court/Children's Court, Namakkal.

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2. The Inspector of Police, Tiruchengode Rural Police Station, Namakkal District.
3. The Superintendent of Prison, Central Prison, Coimbatore.
4. The Superintendent of Prison, Central Prison, Pudukottai.
5. The Public Prosecutor,
Madras High Court, Chennai – 600 104.
Crl.A.Nos.350 & 402 of 2018

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AKII(CO) PM/21/12/2021

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Dipin @ Dinesh Kumar v. the Inspector of Police

Case brief

What is this about?

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Dipin @ Dinesh Kumar v. the Inspector of Police

Case brief

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