BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN CRIMINAL APPEAL (MD)NO.562 OF 2007 Marimuthu and Gnanaraj .. Appellant Vs. State through by the Inspector of Police, Thalavaipuram Police Station, Virudhunagar District (Crime No.127 of 2005) .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence made by the learned Principal Sessions Judge, Virudhunagar at Srivilliputhur made in S.C.No.91 of 2006, dated 28.09.2007. !For Appellant ... Mr.C.Meenakshi Ramaprabhu ^For Respondent ... Mr.C.Daniel Manoharan, APP :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
This appeal has arisen from the judgment of the Principal Sessions
Division, Srivilliputhur made in S.C.No.91 of 2006, whereby the sole
accused/appellant stood charged under Sections 302 and 309 IPC and on trial, he
was found guilty on both charges and awarded life imprisonment and to pay a fine
of Rs.1000/- in default to undergo 6 months RI under Section 302 IPC and 6
months S.I. under Section 309 IPC.
2.The short facts necessary for the disposal of this appeal can be stated
as follows:
a)P.W.8 is the mother of the deceased Umamaheswari. One Palchamy is the
husband of P.W.8. Originally, they are the native of Murambu, which is situated
near Rajapalayam. Following the love affairs between the deceased and the
accused, their marriage was arranged. At the time of marriage, the accused was
employed in Bangalore and the deceased also went to Bangalore and they lived
together for some time. Since the accused did not have sufficient income in
Bangalore, the father of the deceased got employment for the accused and also
for the deceased in the Mill at Cholapuram. Accordingly, both were living at
Cholapuram in a rental house, which belonged to P.W.10. They got only one
daughter, who was in ailment and hence for the operation and for medical
treatment, they were in need of money. The deceased made a request to her Master
for loan, but this was not liked by the accused/appellant. Apart from that,
there were occasions, in which he suspected her fidelity.
b)On the date of occurrence, namely on 27.7.2005, in the morning hours,
P.W.2 came out of the house to take water from the public pipe. At that time, he
heard a distressing cry from the house of the accused. He also found the accused
coming out of the house with burn injuries. P.W.2 got into the house to witness
the dead body of the deceased. When P.W.4, the Doctor attached to the Government
Hospital, Rajapalayam, was in duty at about 9.00 a.m., the accused appeared and
informed him that in the morning hours when his wife attempted to self immolate
herself, he intervened and went to her rescue and at that time, he sustained
injuries. P.W.4 medically examined him and found 40% burn injuries in the body
of the accused. The Accident Register copy in that regard was marked as Ex.P.4.
c)At about 6.30 a.m. P.W.1, the Village Administrative Officer of
Therkuvenganallur, was informed that the deceased was found dead in her house.
Immediately, he went over to the place of occurrence, verified the same and
then, proceeded to the respondent police station. He gave Ex.P.1, the complaint
to P.W.16, the Inspector of Police. On the strength of the same, a case came to
be registered in Crime No.127 of 2005 under Section 174 Cr.P.C. and the F.I.R.
Ex.P.12 was sent to the court.
d)P.W.12, the Revenue Divisional Officer of the said division, on receipt
of the copy of the F.I.R., proceeded to the spot, made an enquiry and also
recorded the statement of the witnesses. He also made an inquest in the presence
of the witnesses and panchayatdars. He gave Ex.P.9, the report, wherein he has
recorded a finding that she might have been murdered on account of dowry demand.
Following the same, the dead body was sent to the hospital for the purpose of
autopsy.
e)P.W.3, the Doctor attached to the Government Hospital, Rajapalayam, on
receipt of the requisition, has conducted post-mortem on the dead body of the
deceased. He has issued Ex.P.2, the post-mortem certificate, wherein he has
opined that the deceased would appear to have died 24 to 32 hours prior to post-
mortem due to 100% burn injuries and also the injury found on the skull.
f)P.W.15, the Deputy Superintendent of Police of the said division took up
investigation, on receipt of the copy of the F.I.R. He proceeded to the spot and
made an inspection in the presence of the witnesses. He prepared Ex.P.7, the
observation mahazar and Ex.P.11, the rough sketch. He recovered the material
objects from the place of occurrence under a cover of mahazar. Since no dowry
demand is noticed by him, he handed over the entire records to the Inspector
concerned for further investigation.
g)P.W.16, the Inspector of Police, took up the matter for further
investigation. He proceeded with the investigation. The case was altered to
Sections 302 and 309 IPC. The amended F.I.R. Ex.P.13, was despatched to the
court.
h)On 18.11.2005, the accused, who was all along in Thiruppur, came to
Murambu and made a confession about the occurrence to P.Ws.7 and 14. On
19.11.2005, P.W.16 arrested the accused at the bus stop. When the accused
voluntarily gave confessional statement, it was also recorded in the presence of
the witnesses. Then, the accused was sent for judicial remand. Ex.P.16 is the
Hyoid Bone report. Ex.P.5 is the Viscera report. On completion of the
investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of Sessions and necessary charges
were framed. In order to substantiate the charges, the prosecution examined 16
witnesses and relied on 16 exhibits and 5 M.Os. On completion of the evidence on
the side of the prosecution, the accused was questioned under Section 313
Cr.P.C. as to the incriminating circumstances found in the evidence of
prosecution witnesses. The accused flatly denied them as false. No defence
witness was examined. On hearing the submissions made and also scrutiny of the
materials available, the trial court took the view that the prosecution has
proved the case beyond reasonable doubt and entered a judgment of conviction and
sentence, which is the subject matter of challenge before this court.
4.Advancing arguments on behalf of the appellant, Mr.C.Meenakshi
Ramaprabhu, the learned counsel has made the following submissions:
a)In the instant case, the prosecution had no direct evidence to offer and
it rested its case only on circumstantial evidence. P.W.2, who was the
neighbour, found the accused/appellant coming out of the house in or about the
time of occurrence with burn injuries. Further, it is to be pointed out that it
is admitted by the accused that while his wife attempted to commit suicide, in
order to save her, he took efforts, but he sustained injuries and thus, he came
out of the house with burn injuries and hence the evidence of P.W.2 cannot be
taken to be in favour of the prosecution.
b)The other circumstance is the extra judicial confession, which was
alleged to have been given by the accused to P.Ws.7 and 14 on 19.11.2005. It is
pertinent to point out that the occurrence has taken place on 27.7.2005, but the
extra judicial confession was alleged to have been made on 19.11.2005. It is
further to be pointed out that these two witnesses, to whom extra judicial
confession was made, did not produce the accused before the police and hence
there was a long interval. Thus, it would be nothing, but these two witnesses
have been introduced in order to shape and strengthen the prosecution case, but
in vain.
c)Further, according to the police, he was arrested and his confessional
statement was recorded, but it would not lead to any inference or any decision
or conclusion and under these circumstances, it was of no legal consequence at
all. Further, according to the post-mortem Doctor, death would have occurred out
of the injuries found on the skull and also due to 100% burn injuries. In the
cross-examination, he has clearly pointed out that the injury on the skull would
have been occurred due to the fall. There was no fracture found. The case of
prosecution was that the accused attacked her with the iron rod and caused
injuries, but no corresponding injury was found. Not even a suggestion was put
to the Doctor by the prosecution. Hence the medical evidence did not support the
prosecution case. Thus, the prosecution has not placed or proved any
circumstances pointing to the guilt of the accused and hence the
accused/appellant is entitled for acquittal. The lower court has not considered
the same, but has passed the judgment of conviction and sentence erroneously.
5.The court heard the learned Additional Public Prosecutor on the above
contentions and has paid its anxious consideration on the submissions made.
6.In the instant case, it is not in controversy that the wife of the
accused was found dead in her house at about 6.30 a.m. on 27.7.2005. When it was
brought to the notice of the police by P.W.1, V.A.O., a case came to be
registered under Section 174 Cr.P.C. The inquest was made by the concerned
Revenue Divisional Officer and the dead body was subjected to post-mortem by
P.W.3, the Doctor, who has issued Ex.P.2, the post-mortem certificate, wherein
he has opined that the deceased would appear to have died of burn injuries and
also the injury found on the skull and thus, there is no doubt that she died out
of those injuries. The same is also not disputed by the appellant and hence, it
has got to be recorded so.
7.In order to substantiate the charges levelled against the appellant, the
prosecution had no direct evidence to offer. It has placed a few circumstances
and has made an attempt to prove the same. The court is mindful of caution made
by the Apex Court and also it is also a settled proposition of law that in a
given case like this when the prosecution rested its case on circumstantial
evidence, all the circumstances necessary must be placed and proved and they
should make a complete chain even without a snap, pointing to the hypotheses
that except the accused no one could have committed the offence. The court is
afraid, if this test is applied, whether the circumstances could be taken as
proved.
8.The first circumstance relied on by the prosecution is P.W.2, who saw
the accused coming out of the house in or about the time of occurrence. This
fact is not disputed by the accused. According to the prosecution, it was the
accused who set her ablaze after attacking her with the iron rod. According to
the accused, she set fire herself in an attempt to commit suicide and he
attempted to rescue her and in that process, he sustained injuries and with the
burn injuries, he came out of the house and proceeded to the hospital. According
to P.W.2, he saw the accused coming outside of the house with burn injuries.
Thus, the evidence of P.W.2 in no way would be helpful to the prosecution case,
pointing to the guilt of the accused.
9.The second circumstance relied on by the prosecution is the extra
judicial confession alleged to have been made by the appellant to P.Ws.7 and 14.
Admittedly, the occurrence has taken place on 27.7.2005. According to the
prosecution, the extra judicial confession was given to P.Ws.7 and 14 only on
19.11.2005, i.e. nearly after an interval of 4 months. Such an act of the
accused coming back to his native place and making such a confession to two
persons is highly improbable and unbelievable. Thus, it casts a doubt whether
these two witnesses could have been introduced to strengthen the case, if
possible. The court must look the attendant circumstance and hence the interval
of four months would be sufficient to reject that part of the evidence in
respect of extra judicial confession.
10.The next circumstance relied on by the prosecution was the medical
opinion given by P.W.3, the Doctor, who has conducted post-mortem. According to
him, the death would have occurred due to the injuries on skull and also due to
100% burn injuries. The specific case of the prosecution was that he attacked
his wife with the iron rod and caused injuries on skull. But there is no direct
evidence. Since the prosecution rested its case on circumstantial evidence, the
court must see whether such circumstances are available. Even the post-mortem
Doctor has clearly stated in the cross-examination that a sudden fall would be
sufficient to cause such injury on the head. On the contrary, not even one
question was put to the post-mortem Doctor to prove the fact that the injury
that was found on the skull of the deceased could have been caused by the attack
with iron rod. Hence the prosecution has not proved the fact. On the contrary,
the defence made an attempt to disprove the same.
11.Added circumstance was that originally, the case was registered under
Section 174 Cr.P.C. Had it been true that P.W.2, who has actually seen the
accused coming out of the house with burn injuries, said so to the police, the
police personnel would have fixed the accused there itself and there was no need
to register the case under Section 174 Cr.P.C. But, the case was altered to
Section 302 IPC after a long lapse of time. Even, the Revenue Divisional
Officer, who made an enquiry, has not even whispered anything about the act of
the accused. All would go to show that the prosecution has not proved the case
either by placing the circumstances necessary or proving the same, pointing to
the complicity of the offender. The lower court has not considered either
factual or legal positions. Hence it is a fit case where the accused/appellant
is entitled for acquittal.
12.In the result, the criminal appeal is allowed, setting aside the
judgment of conviction and sentence imposed on the appellant by the trial court.
The appellant is acquitted of the charges levelled against him and he is
directed to be released forthwith unless his presence is required in connection
with any other case. The fine amount if any paid by him shall be refunded to
him.
vvk
To
1.The Inspector of Police,
Thalavaipuram Police Station,
Virudhunagar District.
2.The Principal Sessions Judge,
Virudhunagar District
Srivilliputhur.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
