Madras High Court
R.Suresh vs State Represented By on 28 October, 2021
Crl.A.No.247 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mrs. Justice S.SRIMATHY
Crl.A.No.247 of 2020
R.Suresh .. Appellant/Accused
Vs.
State represented by
The Inspector of Police,
B-3, Fort Police Station,
Chennai. .. Respondent/Complainant
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.
For Appellant : Mr.V.Parthiban
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
Page 1 of 14
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Crl.A.No.247 of 2020
JUDGMENT
(Delivered by P.N.PRAKASH, J.)
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.
2. The prosecution story runs thus:
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, 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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Crl.A.No.247 of 2020
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.
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.
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
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Crl.A.No.247 of 2020
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.
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.
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.
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).
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.
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Crl.A.No.247 of 2020
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).
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.
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:
“The deceased would appear to have died of
asphyxia due to neck compression (strangulation).”
2.11 After examining witnesses and collecting the various reports,
the Investigating Officer completed the investigation and filed a final report
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Crl.A.No.247 of 2020
in P.R.C.No.87 of 2015 before the VII Metropolitan Magistrate Court,
Chennai.
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.
2.13 The trial Court framed a charge under Section 302 IPC and
when questioned, the appellant pleaded “not guilty”.
2.14 To prove the prosecution case, the police examined twelve
witnesses and marked thirteen exhibits and one material object.
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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Crl.A.No.247 of 2020
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.
2.17 Aggrieved by the aforesaid conviction and sentence, the
appellant has preferred the present appeal.
3. Heard Mr.V.Parthiban, learned counsel for the appellant and
Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor appearing
for the respondent/State.
4. This is a case based on circumstantial evidence, inasmuch as,
no witnesses had actually seen the appellant strangulating Swetha.
5. 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
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Crl.A.No.247 of 2020
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'.
6. 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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Crl.A.No.247 of 2020
7. 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.
8. 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.
9. Yagavalli (PW4), who is also a pavement dweller, in her
evidence, has stated that when Swetha went for her bath, the appellant also
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Crl.A.No.247 of 2020
went behind her and soon, a boy came to her and stated that the appellant is
attempting to commit suicide by hanging.
10. 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.
11. 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.
12. 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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Crl.A.No.247 of 2020
13. 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 (Ex-P9), 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.
14. 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.
15. In the light of such overwhelming contradictions in the
testimonies of Ilamalli (PW1), Somasundari (PW3), Yagavalli (PW4) and
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Crl.A.No.247 of 2020
Kalaivani (PW6), it will be unsafe to confirm the conviction and sentence
imposed on the appellant by the trial Court.
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.
(P.N.P.,J.) (S.S.Y.,J.)
28.10.2021
nsd
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Crl.A.No.247 of 2020
To
1.The Sessions Judge,
Mahila Court, (Mahalir Neethimandram),
Chennai.
2.The Inspector of Police,
B-3, Fort Police Station,
Chennai.
3.The Superintendent of Police,
Central Prison-I,
Puzhal, Chennai.
4.The Public Prosecutor,
Madras High Court,
Chennai – 600 104.
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Crl.A.No.247 of 2020
P.N.PRAKASH,J.
and
S.SRIMATHY,J.
nsd
Crl.A.No.247 of 2020
28.10.2021
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