BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/04/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN Criminal Appeal (MD) No.214 of 2008 1.Palanichamy 2.Kannagi alias Kaveri 3.Krishnammal ... Appellants Vs Inspector of Police, Eriodu Police Station, Vedasanthur Taluk, Dindigul District. ... Respondent Criminal Appeal filed under Section 374(2) of Cr.P.C. against the judgment of the Additional Sessions Judge (Fast Track Court), Dindigul in S.C. No.168 of 2005 dated 25.03.2008. !For Appellants ... Mr.D.Selvaraj ^For Respondent ... Mr.M.Daniel Manohar, Addl. Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by
M.CHOCKALINGAM, J.)
Challenging the judgment of the Additional Sessions Judge (Fast Track
Court), Dindigul in S.C. No.168 of 2005 dated 25.03.2008, whereby the appellants
/ accused 1 to 3 stood charged, tried, found guilty and awarded punishment as
under, the present Criminal Appeal has been filed.
Accused Charges Finding Punishment
under Section
A1 to A3 120(b) IPC Found guilty A1 to A3 were sentenced to pay a
fine of Rs.1,000/- each in
default to undergo
3 months R.I. each.
A1 to A3 364 IPC Found guilty A1 to A3 were sentenced to undergo
2 years R.I. each and to pay a
fine of Rs.1000/- each in default to
undergo 6 months R.I. each.
A1 and A2 302 IPC Found guilty A1 and A2 were sentenced to undergo
life imprisonment each and to pay a
fine of Rs.2000/- each in default
to undergo 6 months R.I. each.
A1 and A2 201 IPC Found guilty A1 and A2 were sentenced to undergo
2 years R.I. each and to pay a fine of
Rs.1000/- each in default to undergo
3 months R.I. each.
A1 to A3 404 IPC Found guilty A1 to A3 were sentenced to undergo
2 years R.I. each and to pay a fine of
Rs.1000/- each in default to undergo
6 months R.I. each.
A3 302 r/w 109 IPC Found guilty A3 was sentenced to undergo life
imprisonment and to pay a fine of
Rs.2000/- in default to undergo
6 months R.I.
2. The short facts necessary for the disposal of this appeal can be stated
as follows:-
(i) P.W.1 is the brother of the deceased Pushpavalli. The son of the
third accused by name Kanagapandi and the deceased Pushpavalli fell in love with
each other, which culminated in their marriage. They had a female born, and
during the relevant time, she was pregnant by five months. The third accused,
who is the mother of Kanagapandi tried her best to separate them, but she failed
in her attempts. Then she hatched up a conspiracy with A-1 and A-2, to do away
with the deceased Pushpavalli.
(ii) On 30.03.2004 at about 1.00 p.m., she went to the house of the
deceased, and under the guise of taking her to the hospital, she took her.
P.W.3, between 12.00 to 1.00 p.m., on that day, found the third accused taking
the deceased. P.W.4, at about 3.45 p.m., saw A-2 and A-3 along with the
deceased. P.W.5 witnessed the deceased in the company of A-3 and another, in a
bus. P.W.6 has seen the deceased as pillion rider in a two-wheeler, which was
driven by A-2 on that day. Thereafter, she did not come back. P.W.1 and others
made a search. They gave a complaint on 03.04.2004 and the same was registered
by the respondent-Police Station in Crime No.92 of 2004, against A-2, A-3 and
others. The said complaint was given by Kanagapandi, the husband of the
deceased, alleging that his wife was missing. Equally, another complaint was
given and registered.
(iii) While the matter stood thus, P.W.1 filed H.C.P.No.507 of 2004 and
also, the mother of the deceased filed H.C.P.No.559 of 2004, and they were
pending before this Court. On enquiry, a Division Bench of this Court made a
common order directing the respondent-Police to register a case pursuant to
which, a case came to be registered in Crime No.140 of 2004 under Sections 147,
323, 294(b) and 364 IPC on 28.05.2004. The printed F.I.R.-Ex.P19 was despatched
to the Court and P.W.22 took up investigation.
(iv) While the matter stood thus, A-1 was arrested on 25.01.2005. He came
forward to give a confessional statement voluntarily and the same was recorded
by P.W.22 in the presence of P.W.10 and other witnesses. The admissible portion
of the confessional statement of the first accused is marked as Ex.P2. On the
basis of the confessional statement, A-1 took the police party to the place
where the dead body was buried and P.W.22 addressed a communication to P.W.15-
Tahsildar in whose presence the dead body was exhumed and material objects were
also recovered. Ex.P20 is the Exhumation Report. P.W.15 conducted inquest on
the dead body in the presence of witnesses and Panchayatars. Subsequently, the
case was converted to Sections 302, 120(b) and 201 of IPC. P.W.22 prepared
Ex.P3-Observation Mahazar and Ex.P24-Rough Sketch.
(v) The Doctor, P.W.20, on receipt of the requisition conducted autopsy on
the dead body and has issued Ex.P21-Post Mortem Certificate that the deceased
would appear to have died of compression of neck and she would have died 8 to 12
months prior to exhumation and post mortem.
(vi) Pending the investigation, A-2 and A-3 were arrested and confessional
statements were also recorded. The admissible portion of the confessional
statements of the second and third accused are marked as Ex.P8 and Ex.P9,
respectively. From the second accused, M.O.5-a pair of ear studs, were recovered
and from the third accused, M.O.4-Thali was recovered under a cover of Mahazar.
The Investigating Officer recorded the statements of the witnesses.
(vi) On exhumation of the dead body, only the skull part was available
along with bones which were sent for Superimposition Test along with the
photographs. The Superimposition Test was conducted by P.W.16 and the Forensic
Sciences Department gave a report under Ex.P18 wherein it was opined that, it
was the skull of Pushpavalli and the same was received and placed before the
Court. On completion of the investigation, the Investigating Officer filed Final
Report. The case was committed to the Court of Sessions and necessary charges
were framed against the accused.
3. In order to substantiate the charges levelled against the accused, the
prosecution examined 22 witnesses and relied on 28 exhibits and 9 M.Os. 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 were denied by the accused.
No defence witness was examined. The Trial Court after hearing the arguments
advanced on either side and considering the materials available on record, took
the view that the prosecution has proved the case beyond reasonable doubt and
found the accused guilty of the charge of murder and awarded punishment.
Challenging the conviction and sentence as referred to above, this appeal has
been filed by the accused/ appellants.
4. Advancing arguments on behalf of the accused / appellants,
Mr.D.Selvaraj, learned counsel for the appellants, made the following
submissions.
(i) The specific case of the prosecution was that one Pushpavalli, wife of
one Kanagapandi and the daughter-in-law of A-3 was done to death following a
conspiracy hatched up by A-3 along with A-1 and A-2. The witnesses were examined
to speak about the last seen theory. P.Ws.3, 4, 5 and 6 were examined to the
effect that A-3 came to the house of Pushpavalli and she was taken from the
house at about 1.00 to 2.00 p.m. on 30.03.2004 and that she was actually found
in the company of A-3 and another in a bus and that, P.W.6 has also seen A-2
taking her in a bike that evening. Insofar as the last seen theory put forth by
the prosecution, it could not be true since P.W.21 and P.W.22 have categorically
stated that those witnesses have not spoken to that effect at the time of their
examination under Section 161 of Cr.P.C. and therefore, the prosecution has
miserably failed to show that the dead body which was taken out by exhumation
was that of Pushpavalli.
(ii) Certain photographs were given to the Forensic Department for the
purpose of tests, but there is no evidence to indicate from whom the photographs
were received or the photographs which were received were that of Pushpavalli.
Thus, the report what was received from the Forensic Sciences Department was in
respect of photographs and that was actually the skull which was placed, but
there is no material to indicate that the photograph which was placed before the
Forensic Sciences Department was that of Pushpavalli, and there is no evidence
available as to how it was recovered and from whom it was recovered.
5. Learned counsel for the appellants brought to the notice of this Court
that 2 F.I.Rs. were registered, one in Crime No.92 of 2004 on 03.04.2004, while
the other in Crime No.140 of 2004 on 28.05.2004. Insofar as the first crime is
concerned, i.e. Crime No.92 of 2004, four accused are shown in which A-2 and A-3
are noticed, but the name of A-1 is not found. Equally in Crime No.140 of 2004,
number of accused are shown and the Investigator has admitted that in both the
crime numbers, number of witnesses were examined and the statements were
recorded, but they were not at all produced before the Court. In the H.C.Ps.
filed before this Court, affidavits were filed by the Investigating Officer to
the effect that Pushpavalli was very well alive. It is pertinent to point out
that both these H.C.Ps. were filed later at that point of time and therefore,
the investigator who took up investigation in these crime numbers, one of which
was subsequently altered into Section 302 IPC, has placed the affidavit before
the Court that she was very well alive. Apart from that, the said Investigator
has admitted before the Court that all the witnesses who were examined by him
have given a statement to the effect that Pushpavalli was alive and thus he has
gone to the extent of giving evidence before the Court that Pushpavalli was very
well alive and under such circumstance, coupled with the fact that there is no
evidence available as to the identity of the person who died and the evidence of
the Investigating Officer that Pushpavalli was very well alive from the
statements of the witnesses, the prosecution has not even proved to the effect
that Pushpavalli died or the evidence which were produced before the Court
pertains to Pushpavalli. In that score also, the prosecution has miserably
failed to prove the same.
6. Learned counsel for the accused / appellants further added that insofar
as the alleged recoveries are concerned, these are all cooked up in order to
suit the case of the prosecution and hence, the prosecution has miserably failed
to prove the case and the Trial Judge has taken an erroneous view and there is
no iota of evidence in respect of conspiracy and hence the Trial Judge should
have acquitted the accused, but had taken an erroneous view in order to find
them guilty, and therefore, the judgment of the Trial Court has got to be set
aside.
7. This Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and also
scrutinised the materials available.
8. As could be seen from the available materials, the prosecution
commenced its story that aggrieved over the marriage of her son Kanagapandi with
the deceased Pushpavalli, A-3 hatched up a conspiracy with A-1 and A-2. At the
outset, it must be made clear that the prosecution has not even placed any
evidence or material to indicate that there was any conspiracy among them at any
point of time and hence, the prosecution failed in its conspiracy theory.
9. Insofar as the role of the accused / appellants in causing the death of
Pushpavalli and also charges pertaining to the causing of the death of
Pushpavalli and the screening of evidence, the Court has noticed the following
infirmities, which in the considered opinion of this Court, would suffice to
reject the case of the prosecution.
10. The specific case of the prosecution was that Pushpavalli, the wife of
Kanagapandi was done to death and hence the factum of death of Pushpavalli must
be proved in the instant case. The specific case of the prosecution was that A-3
who came to the house of Pushpavalli took her under the guise of taking her to
the hospital on 30.03.2004, but unfortunately all the witnesses who were
examined as to the last seen theory of Pushpavalli with the accused namely
P.Ws.3, 4, 5 and 6, have categorically deposed that they have not specified the
date, which shows that their evidence became shaky. The Investigator has
categorically admitted that these witnesses have not spoken that Pushpavalli was
taken by them or found in their company and thus, the last seen theory was
highly doubtful.
11. Insofar as the identity of Pushpavalli is concerned, the prosecution
has not placed any evidence worth mentioning. P.W.15-Tahsildar has exhumed the
body and certain skeletons were found and it was also subjected to post mortem
and P.W.20-Dr.Meiyazhagan conducted the post mortem and to that effect, Ex.P21-
Post Mortem Certificate was also issued, which would show that due to the
injuries the death has been caused. What was available was only a skeleton, and
in more particular, a skull and they were placed before the Forensic Sciences
Department for analysis. Certain photographs were also recovered and placed
before the analyst. It is true that P.W.16 has given a report to the effect that
Superimposition Test which was done by him would indicate that what was
recovered was actually that of the female in the photograph, but the question at
that juncture would be whether the photograph was that of Pushpavallli. Now it
has to be pointed out that the prosecution has not brought forth any evidence
from whom the photograph was actually received or how they got custody of the
same. In short, there is no evidence at all to show that the photograph that
was available with the Police and placed before the Forensic Sciences Department
was that of Pushpavalli. In such circumstance, though the superimposition test
was in favour of the prosecution, in the absence of anybody to identify the
photograph that it was Pushpavalli, the evidence put forth by the prosecution as
to the identity of the deceased, cannot be accepted.
12. Added circumstance was that there were two H.C.Ps. in which a common
order came to be passed in H.C.P.Nos.507 and 559 of 2004, one at the instance of
the brother and other at the instance of the mother of the deceased Pushpavalli,
and in both these H.C.Ps., the Investigating Officer and the Police Official
filed an affidavit to the effect that Pushpavalli was alive and a common order
came to be passed by this Court on 28.05.2004, pursuant to which a case came to
be registered only for kidnapping and not for murder. Further, the Investigating
Officer who was examined before the Trial Court, has categorically stated that
the witnesses who were interrogated have given statements to the effect that
Pushpavalli was alive. The affidavit filed by the Investigating Officer in the
H.C.Ps. coupled with the fact that all the witnesses who have been interrogated,
have stated that Pushpavalli was alive and also in the absence of any evidence
as to the identity of the photograph which was placed before the Forensic
Sciences Department, would clearly indicate that prosecution has miserably
failed to bring home any one of the factual aspects required to take a decision
in the case. Added further, it is pertinent to point out that 2 F.I.Rs. were
filed only by the same Police, one at the instance of the husband of the
deceased and another at the instance of the order of this Court, and in both
these cases, there was no proper investigation. On the contrary, the case was
converted to Section 302 IPC only on the arrest of A-1 having suspicion over him
and the Investigator would claim that it was A-1 who took them to the place of
burial and that skeleton was taken. The recovery which has been relied upon by
the prosecution does not show the nexus of the accused with the crime in
question, since from the skeleton that was recovered, the prosecution was unable
to show that it was that of Pushpavalli.
13. Under the circumstances, for the above stated reasons, the prosecution
has not brought home the guilt of the accused and the prosecution has miserably
failed to prove the conspiracy theory or there was a murder committed by the
accused. Hence the learned Trial Judge has taken an erroneous view and it has
got to be set aside. Therefore the Criminal Appeal is allowed and the judgment
of conviction and sentence passed by the Additional Sessions Judge (Fast Track
Court), Dindigul in S.C.No.168 of 2005, dated 25.03.2008, is set aside, and the
appellants / accused 1 to 3, are acquitted of all the charges levelled against
them. The appellants / accused 1 to 3 are directed to be released forthwith,
unless their presence is required in connection with any other case. The fine
amount, if any paid by the accused, shall be refunded.
KM/VSG
To
1.The Additional Sessions Judge,
Fast Track Court,
Dindigul.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.