Madras High Court
Dipin @ Dinesh Kumar vs State Represented By on 15 November, 2021
Crl.A.Nos.350 & 402 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.11.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mrs. Justice R.HEMALATHA
Crl.A.Nos.350 & 402 of 2018
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
Vs.
State represented by
The Inspector of Police,
Tiruchengode Rural Police Station,
Namakkal District.
(Crime No.500/2016) .. Respondent/Complainant
in both appeals
Prayer in Crl.A.No.350 of 2018: 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.
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.350 & 402 of 2018
Prayer in Crl.A.No.402 of 2018: 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.
For Appellant
in both appeals : Mr.P.Govindarajan
For Respondent
in both appeals : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
COMMON JUDGMENT
(Delivered by P.N.PRAKASH, J.)
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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Crl.A.Nos.350 & 402 of 2018
2. For the sake of convenience, the parties will be referred to as
per their ranking in Crl.A.No.402 of 2018.
3. The prosecution story runs thus:
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.
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
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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.
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 19.10.2016, as could be seen from the endorsement thereon.
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
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Pavayee and prepared the inquest report (Ex-P15). He (PW18) requisitioned
the services of the dog squad, photographer and finger print expert.
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:
“Opinion: The deceased would appear to have died of
asphyxia due to manual strangulation (by hands).”
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).
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
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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 (Ex-P6) in the presence of
witnesses Manivannan (PW12), VAO and Senthil (not examined).
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 Justice Board (for brevity “the JJB”), Namakkal.
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
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Crl.A.Nos.350 & 402 of 2018
Mahila Court), Namakkal, for trial.
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.
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).
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
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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.
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.
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:
Accused Provision under Sentence
which convicted
Manikandan Section 449 IPC Life imprisonment and fine of
Karuppan (A1) Rs.1,000/-, in default to undergo six
months rigorous imprisonment.
Section 302 r/w 34 Life imprisonment and fine of
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 Section 449 IPC Seven years simple imprisonment
Kumar (A2) 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
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Accused Provision under Sentence
which convicted
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 IPCFive years simple imprisonment and
fine of Rs.500/-, in default to
undergo three months simple
imprisonment.
The aforesaid sentences were ordered to run concurrently.
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.
4. 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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Crl.A.Nos.350 & 402 of 2018
5. 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.
6. 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.
7. 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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8. 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.
9. Admittedly, Manikandan Karuppan (A1) is the son of one
Periyasamy, whose farm is adjacent to that of Pavayee.
10. 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) 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
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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.
11. 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).
12. We carefully examined the evidence of Rajini (PW13) and the
report (Ex-P8).
13. 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
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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.
14. 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
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Crl.A.Nos.350 & 402 of 2018
absence of this crucial evidence, the important chain in the link gets snapped
and 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.
15. 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.
16. 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 (Ex-P1) 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
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as follows in his examinations-in-chief:
Chief examination in S.C.No.19 of 2017:
“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$h;gLj;jpdhh;/”
Chief examination in Juvenile Special C.C.No.1 of 2017:
“mjd; gpd;dh; vjphpapd; xg;g[jy;
thf;FK:yj;jpd; mog;gilapy; eh';fs; midtUk;
vjphp jpgPd; (v) jpndc;&Fkhh; tPl;ow;F
brd;wnghJ mth; jdJ tPl;oy; ,Ue;J xU
j';f nkhjpuk; 1-2 gt[d; cs;sij vLj;J
M$h;gLj;jpdhh;/” ..... (emphasis supplied)
17. 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 @
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Dinesh Kumar (A2).
18. 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.
19. 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).
In the result:
i. Both the criminal appeals succeed and are accordingly allowed;
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;
iv. Fine amount, if any, paid by Manikandan Karuppan (A1) and Dipin
@ Dinesh Kumar (A2), shall be refunded to them; and
v. Manikandan Karuppan (A1) and Dipin @ Dinesh Kumar (A2) shall
be released forthwith, if they are not required in any other case.
(P.N.P.,J.) (R.H.,J.)
15.11.2021
nsd
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To
1.The Sessions Judge,
Fast Track Mahila Court/Children's Court,
Namakkal.
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, Trichy.
5.The Public Prosecutor,
Madras High Court,
Chennai – 600 104.
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P.N.PRAKASH,J.
and
R.HEMALATHA,J.
nsd
Crl.A.Nos.350 & 402 of 2018
15.11.2021
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