BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12/07/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU CRL.A.Nos.1080 of 2000 CRL.A.Nos.1456 of 2002 1.Subban 2.Velakkapatti alias Vellaichamy .. Appellants in CA 1080/2000 Veluchamy .. Appellant in CA 1456/2002 vs Inspector of Police Vadamadurai Police Station Dindigul Dist. Crime No.571 of 1999 .. Respondent in
both appeals
Criminal appeals preferred under Sec.374 of the Code of Criminal Procedure
against the judgment of the Principal Sessions Judge, Dindigul, made in
S.C.No.30/2000 and dated 20.10.2000.
!For Appellants … Mr.A.Padmanaban
for appellants in CA 1080/2000
Mr.S.Nagamuthu
Amicus Curiae
for appellant in CA 1456/2002
For Respondent … Mr.S.P.Samuel Raj, A.P.P.
:COMMON JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)
This judgment shall govern these two appeals in Crl.A.Nos.1080/2000 and
1456/2002, which were filed by A-2 and A-3 and A-1 respectively.
2.The appellants before this Court stood charged, tried and found guilty
in a case of murder by the Principal Sessions Division, Dindigul, in S.C.No.30
of 2000. A-1 stood charged under Sec.302 (2 counts) of I.P.C., found guilty and
awarded life imprisonment along with fine for two counts. A-2 and A-3 stood
charged under Sec.302 read with 34 (2 counts) of I.P.C., found guilty and
awarded life imprisonment along with fine for each count. A-1 to A-3 who stood
charged under Sec.201 (2 counts) of I.P.C., were found guilty and sentenced to
two years Rigorous Imprisonment along with fine for each count. The sentences
were directed to run concurrently.
3.The short facts necessary for the disposal of these appeals, shorn of
unnecessary details, can be stated thus:
(a) P.W.1 is the son of the first deceased Thodakala Gounder. P.W.8
Rajammal, is the daughter of the first deceased. She was given in marriage to
the first accused Veluchamy. The second deceased Lakshmiammal, was the mother
of the first accused. A-1 was a resident of Kalathur, while A-2 belonged to
Puthumaniarampatti Village. A-3 also belonged to Kalathur Village. A-2 and A-3
were associates. On the information given by A-1 that he was an agriculturist,
P.W.8 was given in marriage to him. Thereafter, it came to the knowledge of
P.W.1 and his father that he was a Sorcerer. A-1 had a friend by name Raman,
who was also associated in the witchcraft of A-1. After the marriage was over,
P.W.8 came to know that he was carrying on his witchcraft in his house along
with his associates. P.W.1, when he went over to the house of A-1, came to know
about the same. A few months prior to the occurrence, A-1 accompanied by
others, went over to the burial ground at witching hour, and when he was
returning, just in the corner of the house of P.W.6, he made a ditch and was
putting ashes. The same was witnessed by P.W.7, who shouted at him, and a crowd
gathered. A-1 was tied in a lamppost along with his father-in-law Thodakala
Gounder, and a panchayat was constituted, in which A-1, A-2 and Thodakala
Gounder were imposed a fine of Rs.25,000/- each. A-2 paid the same. A-1 had no
money. Thodakala Gounder by mortgaging his properties, got the said amount and
paid the entire sum of Rs.50,000/- which includes Rs.25,000/- imposed on A-1.
Thereafter, A-1 returned to his place. Many a demand was made by Thodakala
Gounder, the first deceased, for the return of Rs.25,000/- by his son-in-law, A-
1. He did not pay the same. Following a quarrel, P.W.8 came to the house of
her father, and she was staying over there. A-1 came to the village of the
first deceased Thodakala Gounder, and made a request to send his daughter to his
house, to which course the first deceased Thodakala Gounder, was not amenable.
But, he would further add that A-1 should return the money of Rs.25,000/- before
taking his daughter.
(b) While the matter stood thus, Thodakala Gounder was informed that he
can come and get the money from A-1. For the purpose of getting the money,
Thodakala Gounder went to the place of A-1. When he went over there, A-1 asked
him to take oleander seeds which was mixed with the gingili oil. When Thodakala
Gounder denied, he was forced by A-1 to consume the same, and A-2 and A-3 were
also present to intimidate him. He was administered so, and within a short span
of time, he died. This was witnessed by P.W.2. At the time of the occurrence,
the second deceased Lakshmiammal, the mother of A-1, witnessed the same. While
she questioned about the same, they also thought it fit to murder her. They
followed the same procedure adopted to Thodakala Gounder. Within a short span
of consumption of oleander seeds mixed with gingili oil, she died. A-2 and A-3
assisted A-1 in both the acts. Both the dead bodies were buried in the land of
A-1. Ex.P1, the letter, was addressed by A-1 as if it was written by his
father-in-law Thodakala Gounder, to P.W.1 stating that he could take P.W.8 also
to his place. P.W.1 handed over the letter to P.W.10, one of the important
persons of the village, who in turn handed over to P.W.4, a practising Lawyer.
On 28.11.1999, P.W.1 accompanied by P.Ws.3, 4 and 10, went to the house of A-1
and made an enquiry. But, A-1 was giving evasive answers, and thereafter, A-1
came forward to give a confession wherein he has narrated the entire incident,
in which both of them were murdered. Thereafter, P.W.1 went to Vadamadurai
Police Station on 30.11.1999 and gave Ex.P2, the report. On the strength of
Ex.P2, P.W.28, the Inspector of Police, registered a case in Crime No.571/99
under Sections 302 and 201 of I.P.C. The printed First Information Report,
Ex.P30, was despatched to the Court.
(c) P.W.28, the Inspector of Police, took up investigation. He gave a
requisition to P.W.17, the Tahsildar of Vadasendur. He also sent a requisition
to the Medical Person attached to the Government Hospital for the purpose of
autopsy. Accompanied by P.W.25, the Doctor, attached to the Government
Hospital, P.W.17, the Tahsildar, proceeded to the place of occurrence. A-1 was
arrested on 2.12.1999 at 7.00 A.M. in the presence of P.W.20, the Village
Administrative Officer. Thereafter, he gave a confessional statement which was
also recorded in the presence of two witnesses. Following the same, he
identified the place where both the dead bodies were buried, and they were
exhumed in the presence of the Tahsildar. After exhumation of both the dead
bodies, the observation mahazar in that regard and sketch were prepared.
Thereafter, P.W.17 conducted inquest on the dead bodies of Thodakala Gounder and
Lakshmiammal and prepared Exs.P9 and P10, the inquest reports, respectively.
(d) P.W.25, the District Police Surgeon, Professor of Forensic Medicine,
Madurai Medical College, Madurai, conducted autopsy on the dead bodies of
Thodakala Gounder and Lakshmiammal in the presence of Tahsildar and witnesses
and prepared two postmortem certificates, Exs.P24 and P27 respectively. The
viscera of both the deceased were retained for the purpose of analysis. On
receipt of the viscera report, the Doctor has opined that both the deceased
would appear to have died of oleander poisoning about 12 to 15 days prior to
postmortem.
(e) Following the confessional statement given by A-1, A-2 and A-3 were
arrested. On their confession, two spades were also recovered. They were all
sent to judicial remand. All the material objects recovered from the place of
occurrence and from the dead body, were subjected to chemical analysis. Ex.P28
is the Chemical Analyst’s report. On completion of the investigation, the
Investigator filed the final report.
4.The case was committed to Court of Session, and necessary charges were
framed against the accused. In order to substantiate the charges levelled
against the appellants/accused, the prosecution marched 29 witnesses and relied
on 32 exhibits and 18 material objects. On completion of the evidence on the
side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as
to the incriminating circumstances found in the evidence of the prosecution
witnesses, which they flatly denied as false. No defence witness was examined.
On completion of the trial, both sides were heard by the trial Court. After
doing so and going through the materials, the trial Court found all of them
guilty as per the charges and awarded punishments referred to above. Hence,
these appeals at the instance of the appellants before this Court.
5.Arguing for the respective appellants, the learned Counsel would submit
that in the instant case, the prosecution had only one witness to speak about
the crime that was P.W.2; that P.W.2 has also turned hostile, and thus, the
prosecution had no direct evidence to offer; that under the circumstances, the
prosecution rested its case only on the circumstantial evidence; that in the
instant case, not even one circumstance was available for the prosecution, which
would connect the accused with the crime; that in the instant case, according to
the prosecution, the occurrence has taken place on 18.11.1999 at 7.00 P.M., in
which both the deceased Thodakala Gounder, the father of P.W.1, and
Lakshmiammal, the mother of A-1, were killed by administering oleander seeds
mixed with gingili oil by A-1 with the assistance of A-2 and A-3, where they
shared the common intention, and following the same, they buried the dead bodies
in the land of A-1, which came to the knowledge of P.Ws.1, 3, 4 and 10 on
28.11.1999, pursuant to the letter Ex.P1, alleged to have been written by A-1 to
P.W.1; that in the instant case, in order to prove any one of the above facts,
the prosecution has not brought forth any circumstance which could be accepted
by the Court; that according to the prosecution, the occurrence has taken place
on 18.11.1999; but, P.W.1 came to know only in pursuance of the letter alleged
to have been written by A-1, which is marked as Ex.P1; that there is no evidence
through which the prosecution can prove that it was the letter written by A-1;
and that from 18.11.1999 onwards, for a period of 10 days, either P.W.1 or other
family members did not make any search in respect of Thodakala Gounder.
6.The learned Counsel would further submit that according to P.Ws.1 and 8,
the son and daughter of Thodakala Gounder respectively, the letter was received,
and after receipt of the letter, it was handed over to P.W.10, one of the
important persons of the village; that according to P.W.10, he handed over the
same to his brother, P.W.4, a practising Advocate; that all of them namely
P.Ws.1, 3, 4 and 10, went to the house of A-1 at Kalathur on 28.11.1999, and
when they made enquiry, there were evasive answers by A-1; that according to the
prosecution, when he made confession, he came out with truth as to the
occurrence; that at this juncture, it has to be pointed out that this piece of
evidence namely extra-judicial confession alleged to have been given by A-1 to
P.Ws.1, 3, 4 and 10, was much relied on by the prosecution and accepted by the
lower Court also; that it has to be stated that though the entire narration of
the incident was made on 28.11.1999 itself, they went to the Police Station only
on 30.11.1999; but, for a period of nearly 2 days, they did not even whisper to
anybody; that P.W.4 was a practising lawyer; that had it been true, there was no
impediment for any one of the witnesses and in particular P.W.4, to go over to
the Police Station to set the law in motion; that the prosecution has no
explanation to offer; and that under the circumstances, it is highly doubtful
whether such an extra-judicial confession could have been made by A-1 at that
time as put forth by the prosecution.
7.Added further the learned Counsel that according to the Investigating
Officer, a case came to be registered by the respondent police on 30.11.1999
i.e., after two days from the date of the alleged extra-judicial confession;
that the circumstances much relied on by the prosecution is the communication,
addressed to P.W.17, the Tahsildar; that on receipt of the communication, he
came to the spot on 2.12.1999 during which A-1 came forward to give a
confessional statement; that apart from that, he identified the place where both
the dead bodies were buried, and they were exhumed; that this part of the
evidence was much relied on by the prosecution and accepted by the lower Court
also; but, Ex.P7 is the communication addressed by the respondent police to the
Tahsildar; that a perusal of Ex.P7 would clearly reveal that the same was
addressed to the Tahsildar on 30.11.1999; that if to be so, the Tahsildar came
to the spot only on 2.12.1999; that the explanation tendered by the prosecution
that the postmortem Doctor was not available, and therefore, the Tahsildar
waited for two days, cannot be a reason; that in the instant case, the fact that
A-1 has identified the place where both the dead bodies were buried, was of no
use to the prosecution since it was not one recovered following any confession
given by A-1, and also for the simple reason that even as per the communication
addressed to the Tahsildar by the respondent police under Ex.P7, the place where
the dead bodies were buried, came to the knowledge of the police on 30.11.1999
itself, and therefore, the fact that the dead bodies were identified by the
accused on 2.12.1999 in the presence of the Tahsildar was of no consequence;
that it cannot be stated that it was a fact recovered pursuant to a confessional
statement made, and thus, this part of the evidence was also not available for
the prosecution.
8.The learned Counsel would further submit that so far as A-2 and A-3 are
concerned, there is no whisper about both of them by the prosecution witnesses;
that even in the first complaint made, there is nothing to connect A-2 and A-3
with the crime in question; that apart from that, any amount of confessional
statement made by A-1, would not bind them; that the prosecution also relied
upon the recovery of two spades from these two accused, which was of no
consequence; that simply because there was recovery of two spades, it cannot be
taken that the prosecution has proved the guilt of A-2 and A-3; that in the
instant case, the lower Court has also relied on the scientific evidence
indicating that poisonous substance was found in the body of both the deceased,
which would be of no avail, for the simple reason that the prosecution had no
evidence to prove that it was A-1 who joined with A-2 and A-3, for administering
the said poisonous substance; that under the circumstances, the prosecution had
no evidence to offer; but, the lower Court has found them guilty and hence, they
are entitled for an acquittal in the hands of this Court.
9.The Court heard the learned Additional Public Prosecutor on the above
contentions.
10.It is not in controversy that following the complaint given by P.W.1 to
the respondent police, and the communication addressed by the respondent police
to P.W.17, the Tahsildar, both the dead bodies of Thodakala Gounder and
Lakshmiammal, were exhumed in the presence of the Tahsildar, and inquest was
made. Thereafter, both the bodies were subjected to postmortem, and the Doctor
has also given his opinion to the effect that both of them died out of oleander
poisoning. From the evidence, it is clear that both Thodakala Gounder and
Lakshmiammal died out of homicidal violence. It is not a fact disputed by the
appellants either before the trial Court or before this Court, and hence, it
could be safely recorded so.
11.Now, the next question that would arise for consideration is whether
the prosecution has proved the guilt of the accused beyond reasonable doubt.
According to the prosecution, the motive for A-1 to murder his father-in-law,
the first deceased, Thodakala Gounder, was that there was a panchayat, in which
the first deceased paid Rs.50,000/- i.e., Rs.25,000/- for himself and
Rs.25,000/- on behalf of the son-in-law, A-1, and he was making a demand
therefor, and he also refused to send his daughter, P.W.8, to the house of A-1,
and therefore, A-1 became aggrieved. It is the case of the prosecution that
when Thodakala Gounder went over to demand the same, A-1 administered oleander
seeds mixed with gingili oil, and when Thodakala Gounder denied, he was
compelled to consume it, and this was done by A-1 with the assistance of A-2 and
A-3, and thus, they caused his death. The further case of the prosecution is
that when it was witnessed by Lakshmiammal, the mother of A-1, she was also done
to death in the same manner. In order to establish the charges, the prosecution
examined only one eyewitness P.W.2. P.W.2 has turned hostile, and a reading of
her evidence would disclose that the same could not be used for the prosecution
case at any point. Thus, the prosecution had rested its case only on the
circumstantial evidence. In the instant case, the prosecution relied on the
following circumstances:
(i) A letter was written by A-1 to P.W.1, wherein he invited him to come to his
house along with his wife P.W.8;
(ii) At the time when P.Ws.1, 3, 4 and 10 went to his house, A-1 made extra-
judicial confession narrating the entire incident;
(iii) After the case was registered, at the time of the inquest, A-1 identified
the place where both the dead bodies were actually buried;
(iv) The poisonous substance was found in the dead bodies; and
(v) Pursuant to the confession made by A-2 and A-3 on their arrest, the
Investigator recovered two spades.
The above are the only circumstances relied on by the prosecution. When the
evidence available is scrutinised, this Court is of the considered opinion that
though the prosecution made an attempt to prove the case with the aid of the
above five circumstances, no one of the circumstances was pointing to the guilt
of the accused.
12.In the instant case, it is an admitted fact that from 18.11.1999,
Thodakala Gounder was not found. P.W.1, his son, and P.W.8, his daughter, did
not make any attempt to search Thodakala Gounder till the time when P.W.1 gave a
complaint to the police; but, P.W.1 came forward to give evidence stating that
he received a letter Ex.P1. A reading of the letter would indicate that P.W.1
was invited by A-1 along with his wife P.W.8 to the house of A-1. According to
P.W.1, he handed over this letter to P.W.10 one of the important persons of the
village, who in turn handed over to P.W.4, Murugan, a practising Advocate, and
all of them went to the house of A-1 on 28.11.1999. All the four witnesses
P.Ws.1, 3, 4 and 10, have spoken to the fact that A-1 made a confessional
statement to all of them narrating the entire incident. Thus, from the evidence
of the prosecution witnesses, it would be quite clear that the murder of both
the deceased came to the knowledge of these four witnesses on 28.11.1999 itself.
If to be so, at least one of the witnesses and in particular P.W.4, a practising
Lawyer, would have gone to the Police Station to give a complaint immediately.
But, the complaint was given by P.W.1 to the Inspector of Police only on
30.11.1999. What was the reason for such a delay remained unexplained. At this
juncture, it has to be pointed out that P.W.4, a practising Lawyer, even after
hearing such a narration of the incident, did not go to the Police Station, and
instead, he kept quiet without making any complaint to the police. It can be
well stated that he has not done anything at that time. Thus, it casts a doubt
whether A-1 would have made such an extra-judicial confession to P.Ws.1, 3, 4
and 10 at that juncture.
13.After the case was registered by the police on 30.11.1999, a
communication, Ex.P7, was addressed to P.W.17, the Tahsildar. A perusal of
Ex.P7, the letter, would clearly reveal that the communication was addressed on
30.11.1999. P.W.17, the Tahsildar, has deposed to the effect that he received
the communication on 30.11.1999 itself. According to P.W.17, he informed to the
postmortem Doctor, P.W.25, and he was able to get the Doctor’s help only on
2.12.1999, and when he took him to the place of burial of the dead bodies of
Thodakala Gounder and Lakshmiammal, it was identified by A-1. This is a strong
circumstance, relied on by the prosecution and also accepted by the lower Court.
But, this Court is of the considered opinion that it was in no way helpful to
the prosecution case. A perusal of Ex.P7 would indicate that it gives a
narration of the entire story of the prosecution case. Apart from that, the
place where both the dead bodies were buried, was known to the police even on
30.11.1999. If to be so, it cannot be said to be a recovery of a fact on the
confession made by A-1, after he was arrested on 2.12.1999. Thus, the
identification of the burial place by A-1 on 2.12.1999 was nothing but a
subsequent introduction, since it was already known to the police; but, the
police has not taken any steps in that regard. In such circumstances, it cannot
be stated to be a recovery made by the police, following the confessional
statement made by A-1, and the same cannot be claimed to be one under Sec.27 of
the Evidence Act. Thus, that part of the evidence was of no use to the
prosecution case.
14.So far as the letter alleged to have been written by A-1, which was
marked as Ex.P1, and which was also handed over to the Police Officer at the
time of the registration of the case, is concerned, there is no material
available to show that it was one written by A-1. Apart from that, the chemical
report, which would speak about the availability of poisonous substance in the
dead bodies was of no help to the prosecution case since mere presence of the
poisonous substance in the dead bodies cannot be taken as proof for the
prosecution case to the effect that it was administered by the accused. Thus,
this part of the evidence and circumstance relied on by the prosecution would in
no way connect A-1 with the crime.
15.So far as A-2 and A-3 are concerned, what was available for the
prosecution was only the recovery of two spades from them pursuant to their
arrest and confession. Merely because there was recovery of two spades from A-2
and A-3, it cannot be stated that they shared the common intention of A-1, or
they got any nexus to the crime in question. At the same time, it cannot also
be taken that the culpability of these accused has been proved. Added
circumstance is that at the time when the complaint was made, the names of A-2
and A-3 were not mentioned in the F.I.R. Even in Ex.P2, the complaint, which
came into existence on 30.11.1999, the names of A-2 and A-3 were not mentioned.
This is a strong circumstance in favour of A-2 and A-3.
16.Therefore, the cumulative fact is that there is a case where the
prosecution rested the same on circumstantial evidence; but, the circumstances
are neither placed in full nor pointing to the guilt of the accused as narrated
above. In the instant case, it cannot be stated that the prosecution has proved
the charges levelled against them, in any way. Under the circumstances, the
conviction and sentence imposed by the lower Court on the appellants have got to
be set aside, and accordingly, all the appellants/A-1 to A-3 are entitled for an
acquittal.
17.In the result, both these criminal appeals are allowed, setting aside
the judgment of conviction and sentence passed by the lower Court. The
appellants/A-1 to A-3 are acquitted of all the charges levelled against them.
They
are directed to be released forthwith unless their presence is required in any
other case. The fine amounts paid by them, if any, will be refunded to them.
Mr.S.Nagamuthu, appointed as Amicus Curiae to argue the appeal in
C.A.No.1456/2002 on behalf of the appellant, is entitled to get remuneration
from the Legal Aid, Madurai.
To:
1)The Principal Sessions Judge, Dindigul
2)The Inspector of Police
Vadamadurai Police Station
Dindigul Distict, (Crime No.571 of 1999)
3)The Public Prosecutor
Madurai Bench of Madras High Court