IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 13.04.2009 CORAM THE HONOURABLE MR.JUSTICE C. NAGAPPAN AND THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.208 of 2008 Chinna Mathurappa ..Appellant Versus State represented by The Inspector of Police Thalli police Station Krishnagiri District. (Crime No.93 of 2000) ..Respondent Criminal Appeal filed against the conviction and sentence made in S.C.No.244 of 2003, on the file of the learned Principal Sessions Judge, Krishnagiri, dated 21.11.2006. For Appellant : Mr.V.Murugesan for C.Anbarasu For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by T. SUDANTHIRAM, J.)
The appellant herein who is the sole accused in S.C.No.244 of 2003, on the file of the Principal Sessions Judge, Krishnagiri, stands convicted for offences under Sections 302 and 201 IPC and sentenced to undergo life imprisonment and a to pay a fine of Rs.2000/- in default to undergo two years rigorous imprisonment for the offence under Section 302 IPC and sentenced to two years rigorous imprisonment and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for six months for the offence under Section 201 IPC. Aggrieved by the said conviction and sentence, the appellant had preferred this appeal.
2. The case of the prosecution in brief is as follows:
The deceased Byramma is the wife of the accused. P.W.7 is their daughter. P.W.1 is the elder sister of the deceased and P.W.2 is their brother. P.Ws.1 and 2 and the deceased belong to Konmakkanapalli village. About 12 years prior to the occurrence, the deceased married the accused who is the resident of Mallibai Thotty village. P.W.1 had already married the brother of the accused and they were living in Mallibai Thotty and the house of P.W.1 was next to the accused. Due to wedlock, the deceased gave birth to a male and a female child. As the accused ill-treated the deceased, she had gone to her mother’s place. The accused had illicit intimacy with one lady by name Mallesamma. Again the deceased was sent back to her matrimonial home. As she conceived, she came to her parent’s house and she delivered a male child. While the deceased was living with her husband she was driven to her parents’ house. As the children had grown up, she went to Mallibai Thotty along with the father-in-law of P.W.1, one Murugesan and one Chengappan demanded a share in the properties of the accused. The accused had refused to give the share, instead he said that he is prepared to live with the deceased. As such, the deceased stay in her matrimonial home with children and started living. Then one day in the early morning hours, the accused wanted to take the deceased along with him for collecting tamarind. At that time, there was a quarrel between both of them. P.W.7 daughter of the deceased being awakened questioned that as to why they where going. On hearing the noise, P.W.1 who was lying on the pial of the house came out and questioned the accused and the deceased as to where they were going. The accused had gone with the deceased and thereafter at about 9.00a.m., the accused alone returned home with a knife. P.W.1 enquired the accused about the deceased for which he replied that he did not know about her. As P.W.7 enquired her father, he had informed that the deceased had gone to her mother’s place and she would return within two or three days. After five days, as P.W.1 again enquired the accused, the accused told her that he had committed the murder of his wife at Munikudikal and he also threatened her not to disclose this fact to anyone. Thereafter, P.W.1 informed about this to her brother Muniappan, her maternal uncle. Then P.W.2 and others went in search of the body of the deceased found lying in the gap between the rocks at the depth of 15 feet at Munikudukal. On seeing the body, they could identify from the bangles, metti and clothes as that of deceased Byramma. P.W.1’s brothers went to the police station and gave a complaint.
3. P.W.9, Sub Inspector of Police of Thalli Police Station received a complaint Ex.P.10 from Muniappan and registered the case in Crime No.93 of 2000 for offence under Section 302 and 201 IPC and prepared a First Information Report Ex.P.9 and he also sent the copy of FIR to the higher officials and to the Court.
4. PW.10, Inspector of Police on receiving the copy of the FIR went to the seen of occurrence and prepared the observation mahazar Ex.P.1, in the presence of P.W.4 and another and also prepared a rough sketch Ex.P.11. He held inquest from 3.30p.m., to 4.30p.m., and examined the witnesses and prepared the inquest report Ex.P.12. He recovered a saree M.O.1 and a jacket M.O.4 under Ex.P.2 mahazar. He also gave a requisition for conducting the post mortem.
5. PW.8 , Dr. Pichai Thirumalai on receiving the body at 6.30a.m., held autopsy at 11.30a.m., and he noticed the following injuries:
“Appearances found at the post-mortem of a highly decomposed female body lies on its back with all the four limbs extended. No facial demarcation seen with absence of hair in the scalp. Tongue absent. Facial bone exposed. Moving Maggots present all over the body. Skin absent over the abdomen – back and front pelvic region and upper part of the both thighs. Bones of the both upper arms exposed. No internal organs present. Brain matter absent oozed out through orbit.
External Injury:
Injury on (n.c.) seen over the left side of the neck and sub mandibular region with absence of muscles and Neuro vascular bundle over the neck with exposing the cervical vertebra. Skin of the area preserved. Hyoid bone absent. Vertebral column loosened dismantled. Skin with cervical bone (6 Nos.) and skin over the left side of the neck preserved.”
The Doctor opined that the deceased would appear to have died of injury to head and neck 15 days prior to post mortem examination. He preserved the skin over the left side of the neck. The bone case report is Ex.P.8., and the opinion given in that is “Contusion (Antemortem) present on left temporo occipital region of scalp. Antemortem fracture of hyoid bone present. Antemortem contusion of neck tissues present.”
6. On 29.02.2000 at 3.00p.m., P.W.10 arrested the accused at Soolakonda in front of the house of Karunanithi and also recorded his confession in the presence of P.Ws.5 and 6. Ex.P.13 is the admissible portion. In pursuance of the confession, the accused was taken to his house and from his house he produced M.O.5 billhook which was seized under Ex.P.3 mahazar in the presence of the same witnesses. Post mortem constable produced M.Os.2 and 3 Two pair of metti and broken bangles which were recovered from the body of the deceased and they were seized under Form-95.
7. As P.W.10 was transferred, P.W.11 Inspector of Police took up further investigation and he recorded the statement of Doctor P.W.8 and after completing investigation, he laid the final report on 27.08.2000.
8. In order to establish its case, the prosecution has examine 11 witnesses, marked 15 exhibits and produced 5 material objects. When the accused was questioned under Section 313 Cr.P.C., he had denied the complicity. No witness was examined on the side of the defence.
9. Mr.V.Murugesan, learned counsel for the appellant submitted that there is no eye witness to the occurrence and the circumstantial evidence let in by the prosecution are unbelievable and unacceptable. Only after tracing the body of the deceased, the accused had been falsely implicated with cooked up materials. The learned counsel further submitted that the evidence of P.W.1 is highly artificial and P.W.7 who was aged only eight years at the time of occurrence is a tutored witness.
10. Per contra, Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor submitted that there is a motive for the accused to commit the murder of the deceased, since she wanted a share in the property of the accused. The evidence of P.W.1 and P.W.7 are to the extent that the accused and the deceased were seen together going to collect the tamarind and the accused alone returned. The body of the deceased also was traced on search only after the accused himself had told P.W.1 that he had murdered the deceased at Munikudical which amounts to extra judicial confession. M.O.5 billhook weapon also has been recovered on the information furnished by the accused. The learned Additional Public Prosecutor submits that the cumulative effect of the circumstances let in by the prosecution lead to the guilt of the accused.
11. This Court considered the submission made by both sides and perused the records. On 27.02.2000, the body of the deceased was found by Muniappan who is the brother of the deceased, P.W.2 and another brother of the deceased and others. The brother of P.W.2 and his brother Muniappan went to the police station and gave Ex.P.10. The body was also identified as that of the deceased Byramma and the clothes and the metti of the deceased also have been identified by the witnesses.
12. The post mortem Doctor P.W.8 also has opined that the deceased had died of injury to the head and neck and as per Ex.P.8 bone case report, contusion was present on left temporo occipital region of scalp. Ante mortem contusion of neck tissues present. As per the evidence of Post mortem, it is established that the deceased had died due to homicidal violence.
13. The point for consideration is that whether the circumstances available in this case prove that the accused is responsible for the homicidal death of the deceased. The prosecution has relied on the following circumstances:
(i) The extra judicial confession given by the accused to P.W.1.
(ii) The evidence of P.Ws.1 and 7 that the accused going away with his wife/deceased and returning back to the house alone.
(iii) The motive for the occurrence that the deceased had demanded the share in the property of the accused.
(iv) The recovery of M.O.5 bill hook in pursuance of the confession given by the accused.
14. According to P.Ws.1 and 7, the deceased was staying in the house of the accused at the relevant time and on the particular day, early morning the accused took the deceased with him and at about 9.00a.m., the accused alone returned. Though P.Ws.1 and 7 had enquired about the deceased, according to P.W.1 the accused informed her that he did not know about the deceased and according to P.W.7, the accused informed her that the deceased had gone to her mother’s place. This part of the evidence of P.Ws.1 and 7 is contradictory to each other. Further, the evidence of P.W.1 is that again he enquired the accused after five days, and at that time, she was informed by the accused that the deceased had been murdered by him. It is also the evidence of P.W.1 that she had not informed this to others, since she was threatened by the accused. This part of the evidence of P.W.1 does not inspire confidence of this Court. Further it is the evidence that subsequently she had informed her brothers. Even then either P.W.2, her brother or another brother Muniappan had not given any complaint to the police immediately, but they had gone in search of the body of the deceased on their own. Ultimately the complaint has been given only after the body of the deceased was seen. P.W.1 has also not given particulars about the date on which she had seen the accused and the deceased and also with regard to the other dates relating to the occurrence. P.W.7, the daughter of the accused was only aged eight years at the time of occurrence and she admits that she did not know the day and dates on which she had lastly seen her father and mother together. According to her, within for or five days from that date, the police had enquired her. This part of the evidence does not coincide with the prosecution case. The evidence of P.Ws.1 and 7 remains unacceptable by this Court. The mere recovery of billhook M.O.5 does not help the prosecution case in any manner. Even according to the prosecution, the billhook was available only in the house of the accused. It is not the case of the prosecution that the accused was absconding after the occurrence. On the other hand, he was available in his house even according to the evidence of P.Ws. 1 and 7. The motive shown by the prosecution case is that the deceased had demanded a share in the property of the accused, but the accused refused to give the property and the deceased had stayed with the accused in the house. According to the defence version, the deceased had not stayed with the accused and she was having illicit intimacy with the another person. Admittedly, the deceased was living separately in her parent’s house for several years. The motive alone cannot be a ground for conviction. We held that the circumstances let in by the prosecution are not established and they do not negative the presumption of the innocence of the accused.
15. In the result, as the prosecution has not proved its case beyond reasonable doubt, the Criminal appeal is allowed and the conviction and sentence imposed on the appellant/accused Chinna Mathurappa, in Session Case No.244 of 2003, on the file of the Principal Sessions Judge, Krishnagiri, are set aside and the appellant/accused is acquitted of all the charges and the fine amount paid, if any, has to be refunded to him. The appellant/accused is directed to be released forthwith, if his custody is not required in any other case.
ksr
To
1. The Principal Sessions Judge,
Krishnagiri.
2.The Inspector of Police
Thalli Police Station
Krishnagiri District.
3.The Superintendent
Central Prison
Vellore-2
4.The Public Prosecutor
High Court, Madras 600104.
5.The Section Officer
Criminal Section, High Court,
Madras 104