BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/03/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.(MD) No.466 of 2008 and M.P.(MD) No.2 of 2008 K.Lakshmi .. Appellant/A-2 vs Inspector of Police Arantangi & Taluk Pudukkottai District .. Respondent/ Complainant Criminal appeal preferred under Sec.374 of Cr.P.C. against the judgment of the Principal Sessions Court, Pudukkottai, in S.C.No.57 of 2006 dated 17.4.2007. !For Appellant ... Mr.C.A.Ganapathi ^For Respondent ... Mr.N.Senthurpandian Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Principal Sessions Division,
Pudukkottai, made on 17.4.2007 in S.C.No.57 of 2006 whereby the appellant shown
as A-2 along with A-1 stood charged, tried and found guilty under Sections 302
read with 34 and 302 read with 201 of IPC and awarded life imprisonment along
with a fine of Rs.10000/- and default sentence and three years Rigorous
Imprisonment along with a fine of Rs.5000/- with default sentence.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
(a) P.W.4 is the mother of the deceased Krishnamoorthy. P.W.6 is the
father of A-2. The marriage of A-2 and the said Krishnamoorthy took place in
the year 1995. They had two children out of the wedlock. They were living at
Merpalaikkadu. The deceased Krishnamoorthy was employed in Hotel Impala at
Pudukkottai, which belonged to P.W.7. On weekly holidays, he used to go to the
village. A-1 was a Homoeopathy Doctor by profession. A-1 and A-2 had illicit
intimacy. P.W.6 and others advised both of them not to behave so. But, both A-
1 and A-2 did not heed to the same.
(b) On 14.6.2004 at about 8.00 p.m., the deceased Krishnamoorthy, after
doing the day’s work, left for his native place, and he had to come back to work
in the hotel on 16.6.2004; but, he did not come back. Even there was no whisper
about him.
(c) On 15.6.2004, during night hours, P.W.9, who is the brother-in-law of
the deceased, along with his wife Suseela came to a tea shop, which belonged to
P.W.10. At that time, A-1 and Krishnamoorthy were taking tea in that shop. A-1
asked the deceased Krishnamoorthy to accompany him. But Krishnamoorthy refused
to go with him. However, on his insistence, the deceased Krishnamoorthy went
along with A-1 in a TVS Moped, which belonged to A-1, and they were not seen
thereafter.
(d) On 16.6.2004, when P.W.1, a native of Poovatrakkudi, was going through
the field, near the well situated in the filed he found a naked dead body, which
was half burnt. Immediately, he proceeded to Aranthangi Police Station where
the Sub Inspector of Police P.W.18 was on duty. He gave a report, which was
marked as Ex.P.1. On the strength of Ex.P.1, PW.18 registered a case in Crime
No.299/2004 under Sections 302 r/w 201 IPC. The printed F.I.R. Ex.P.20 along
with Ex.P.1 report was sent to the Court and to the higher officials.
(e) On receipt of the copy of the F.I.R., P.W.22, the Inspector of Police,
took up investigation, proceeded to the spot and prepared an Observation
Mahazer, Ex.P3 in the presence of witnesses and a rough sketch, Ex.P21. Then,
he arranged for taking photos of the deceased Krishnamoorthy as well as the
place, and the photos and negatives were marked as M.O.38 (Series) and
M.O.39(Series) respectively. He recovered M.O.1 bloodstained earth, half burnt
pant pieces, M.O.2 (Series), bloodstained earth, M.O.3 and sample earth, M.O.4,
and other material objects recovered from the spot. Thereafter, P.W.22 conducted
inquest on the dead body of the deceased in the presence of panchayatdars and
prepared an Inquest Report Ex.P23.
(f) The dead body was subjected to post mortem by the Doctor P.W.15,
attached to the Government Hospital, Aranthangi. He has issued a postmortem
certificate Ex.P18 wherein he has opined that the deceased died out of burn
injuries sustained.
(g) The identity of the body was not known. Hyoid bone and other parts
were preserved for finding the identity. P.W.22 caused necessary publications
through T.V., news papers and bit notices etc.,. On 30.11.2004, P.W.22 received
an information from P.W.4 that the deceased Krishnamoorthy was not found, and he
was missing for 5 months. Then, he proceeded to the place and verified from
P.W.4. He has also received photographs from her. All the photographs and the
negatives which were marked as M.O.38 (Series) and M.O.39(Series) respectively
and the photos which were marked as M.O.11 (Series) received from P.W.4 were
sent along with the skull and other parts of the body for the purpose of super
imposition. The super imposition test was done as a result of which, P.W.19 has
given her opinion under Ex.P17 that the dead body was that of the said
Krishnamoorthy.
(h) Pending investigation, on 29.3.2005 A-1 was arrested, and he gave a
confessional statement in the presence of the Village Administrative Officer,
P.W.11 and his assistant. The same was recorded and the admissible part was
marked as Ex.P7. Pursuant to the confession, M.O.21, TVS Moped, and other
materials objects were recovered. A-2 was also arrested. Both the accused were
sent for judicial remand. All the Materials Objects were subjected to chemical
analysis, which resulted in Chemical Analysis Report. On completion of the
investigation, the investigator filed the final report against the accused.
3.The case was committed to the Court of Sessions, and necessary charges
were framed. In order to substantiate the charges levelled against the accused,
the prosecution examined 22 witnesses and relied on 25 Exhibits and 39 Material
Objects. On completion of the evidence on the side of the prosecution, the
accused were questioned under Section 313 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. The trial Court after
hearing the arguments advanced by either side and considering the materials
available on record, took the view that the prosecution has proved its case
beyond reasonable doubt and hence found the accused guilty of the charge of
murder and awarded punishment referred to above. Aggrieved over the same, the
appellant/A-2 has brought forth this appeal before this Court.
4.Advancing the arguments on behalf of the appellant, the learned Counsel
Mr.C.A.Ganapathi would submit that the trial Court has not considered the
evidence in its proper perspective; that there is no evidence at all connecting
the accused with the crime in question; that it is true that the case is rested
on the circumstantial evidence; that if to be so, the onus lies on the
prosecution to prove the appellant’s role in the commission of the offence; but,
it has miserably failed to do so; that it is pertinent to note that P.W.9 is the
only person who is alleged to have seen last the deceased with A-1; that there
is no evidence indicating that the appellant/A-2 was also seen along with A-1
and the deceased; that A-2 was not at all present in the place of occurrence;
that the alleged confessional statement was obtained from A-1 and not from A-2;
that even in the said confessional statement, it is stated that A-1 alone took
the deceased in his TVS 50 moped, poured kerosene and set him ablaze; that apart
from that, there is inordinate delay in lodging the complaint; that in the
instant case, the vital witnesses namely P.Ws.10, 12, 20 and 21 have turned
hostile; that apart from that, the finger print expert’s opinion has been
withheld since it does not connect the accused with the offence; that the
important material object is TVS 50 moped; but, the ownership of the vehicle was
not proved by the prosecution; that the occurrence is alleged to have taken
place in the late night of 15.6.2004; but P.W.9 is alleged to have seen lastly
the deceased along with A-1 by 9.00 A.M. on that date; that under the
circumstances, the last seen theory cannot be applied in the case on hand; that
had P.W.9, the brother-in-law of the deceased, seen the deceased along with A-1
on 15.6.2004, he would have brought the same to the notice of the police or
informed to anybody, but not done so; that it is pertinent to point out that
P.W.4, the mother of the deceased, had not given any complaint about the missing
of her son, and under the circumstances, the evidence projected by the
prosecution through P.W.9 as to the last seen theory, is highly improbable and
unbelievable.
5.Added further the learned Counsel that the case was registered after 5
months, and A-1 and A-2 were arrested after 9 months even though they were very
well available in their native places; that there is no evidence to show that A-
1 and A-2 shared any common intention for the commission of murder; that as far
as the report given by the expert on superimposition test, there is no
conclusion that it was the skull of the deceased Krishnamoorthy; that the
prosecution has miserably failed to point out the nexus or the complicity of A-2
in the instant case; that in the instant case, motive for the crime was illicit
intimacy between A.1 and A.2, but there was no one to speak about that fact;
that the Investigator has filed the final report in the case wherein he has
stated that there was an earlier report, and he would state that only on
suspicion, the accused were arrested; that all those material objects were found
after a long period pursuant to the alleged confession; that the recovery of
material objects and the alleged confession were all highly improbable and
unbelievable; that the trial Court without considering the above aspects of the
matter, has taken an erroneous view and found the appellant/A-2 guilty, and
hence she is entitled for acquittal in the hands of this Court.
6.The Court heard the learned Additional Public Prosecutor on all the
above contentions and paid its anxious consideration on the submissions made.
7.As could be seen above, on 15.6.2004, one half burnt dead body was found
in the field of P.W.1, who gave a complaint under Ex.P1. Thereafter, a case
came to be registered by the respondent police on the strength of Ex.P1. The
identity of the dead body could not be found. Then following the publication
made, it came to light that one Krishnamoorthy, the son of P.W.4, was found
missing for about 9 months. The Investigator probed into the matter and
verified the photographs available, and the skull was sent to the Forensic
Sciences Laboratory along with the photos for superimposition test. A report
was given to the effect that it was the skull of the deceased. Thus, the
prosecution was successful enough in proving the same.
8.The motive attributed to the act of the accused was the illicit intimacy
between A-2, the wife of the deceased, and A-1. As far as the motive part was
concerned, it can be stated that there was no one to speak about the same. A
perusal of the materials available would indicate that the prosecution though
rested its case on the circumstantial evidence, has miserably failed either to
place or to prove the necessary circumstances. The only evidence available for
the prosecution was that of P.W.9, according to whom, he went to a tea shop
along with his wife Suseela, and at that time, he found the deceased
Krishnamoorthy in the company of A-1, and though A-1 called Krishnamoorthy to
accompany him in the TVS moped, the deceased refused to go with him, and A-2,
the appellant herein, compelled him to go and then the deceased went along with
A-1, and thereafter, P.W.9 did not see Krishnamoorthy. The evidence of P.W.9
can be stated as highly improbable and unacceptable for more reasons. P.W.9 has
married the sister of Krishnamoorthy and thus he was the brother-in-law. If to
be so, when Krishnamoorthy was found missing, one would naturally expect P.W.9
to speak about the fact that it was A-1 who took him in his moped; but, he has
not done so. It is pertinent to point out that P.W.9 knew A-1 very well, and A-
1 was also staying in the same place. P.W.9 has neither questioned A-1
thereafter nor informed to P.W.4, the mother of the deceased, about the same.
That apart, neither P.W.9 nor P.W.4 approached the police for a number of months
as to the missing of the said Krishnamoorthy. The statement of P.W.9 was
recorded by the Investigator on 4.1.2005; but, it has reached the Court only
after a period of two months. No explanation was brought forth before the trial
Court. The absence of Krishnamoorthy for a period of five months would
improbablise that P.W.9 could not have seen them together.
9.A-1 on being convicted by the trial Court, challenged the same in
C.A.No.278 of 2007, and this Court has recorded an order of acquittal by setting
aside the judgment of the trial Court, on 6.2.2008. It is pertinent to point
out that the very reasons which were applied for the acquittal of A-1, have got
to be equally applied for this appellant/A-2 also. As far as the illicit
intimacy between A-1 and A-2 was concerned, there was no material available.
Apart from that, the evidence of P.W.9 has been rejected on the reasons stated
above. Further, the appellant/A-2 was arrested only on the confessional
statement made by A-1. Needless to say that the confessional statement of the
co-accused namely A-1 in this case, cannot be applied against the appellant/A-2.
In short, it can be stated that the prosecution had no material to place or to
show that the appellant had got any nexus to the crime in question. But the
trial Court without proper appreciation of the materials available, has found
the appellant guilty. Hence the appeal, in the considered opinion of the Court,
has got to be allowed by setting aside the judgment of the trial Court.
10.Accordingly, this criminal appeal is allowed setting aside the judgment
of conviction and sentence passed by the lower Court. The appellant/A-2 is
acquitted of the charges levelled against her. She is directed to be released
forthwith unless her presence is required in connection with any other case.
The fine amounts if any paid, will be refunded to her. Consequently, connected
MP is closed.
nsv/
To:
1.The Principal Sessions Judge
Pudukkottai
2.The Inspector of Police
Arantangi & Taluk
Pudukkottai District
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai.