BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06/02/2008
CORAM
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR. JUSTICE S.PALANIVELU
Crl.A.(MD) No.278 of 2007
Rajamanikkam .. Appellant
vs.
Inspector of Police,
Aranthangi and Taluk,
Pudukkottai District. .. Respondent
Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of
conviction and sentence dated 17.4.2007 made in S.C.No.57 of 2006 by the learned
Principal Sessions Judge, Pudukkottai.
!For appellant ... Mr. K.Balasundharam
^For respondent ... Mr. C.Danieal Manoharan
Addl.Public Prosecutor
:JUDGMENT
(Judgment of the Court was made
by M.CHOCKALINGAM,J)
Challenge is made to the judgment of Principal Sessions Division,
Pudukkottai dated 17.4.2007 made in S.C.No.57 of 2006 whereby the
appellant/accused along with the second accused, stood charged, tried and found
guilty under Sections 302 r/w 34 IPC and also 302 r/w 201 IPC and awarded
imprisonment for life along with a fine of Rs.10,000/- with a default sentence
of six months rigorous imprisonment for the first charge and three years
rigorous imprisonment along with a fine of Rs.5,000/- with a default sentence of
three months rigorous imprisonment for the second charge.
2. The short facts that are necessary for the disposal of this appeal can
be stated as follows:
(i) PW.4 is the mother of the deceased Krishnamoorthy. PW.6 is the father
of the second accused. The marriage of the second accused and the said
Krishnamoorthy took place in the year 1995. They had two children out of their
wedlock. They were living at Merpalaikkadu. The deceased Krishnamoorthy was
employed in a Hotel Impala at Pudukkottai, which belonged to PW.7. On weekly
holidays, he used to go to the village. The first accused was a Homoeopathy
Doctor by profession. The first accused and the second accused had illicit
intimacy. PW.6 and others advised both of them not to behave so. But, the
first accused and the second accused did not heed to the same.
(ii) On 14.6.2004 at about 8.00 p.m., the deceased Krishnamoorthy, after
doing the day’s work, left for his native place but 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.
(iii) On 15.6.2004, during night hours PW.9, who is the brother-in-law of
the deceased along with wife Suseela came to a tea shop, which belonged to
PW.10. At that time, the first accused and Krishnamoorthy were there taking
tea. The first accused asked the deceased Krishnamoorthy to go with him. But
Krishnamoorthy refused to go with him. However, on his insistence, the deceased
Krishnamoorthy went along with the first accused by TVS Moped, which belonged to
the first accused and they were not seen thereafter.
(iv) On 16.6.2004, when PW.1, a native of Poovatrakkudi was going through
the field, near his 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 PW.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. F.I.R. Ex.P.20 along with
Ex.P.1 report was sent to the Court and to the higher officials.
(v) On receipt of copy of the F.I.R. Ex.P.20, PW.22 took up investigation,
proceeded to the spot and prepared an Observation Mahazer Ex.P.3 in the presence
of witnesses and arranged for taking photos of the deceased Krishnamoorthy as
well as the place and they were marked as MO.38 (Series) and MO.39(Series). He
recovered MO.1 blood stained earth, half burnt pant pieces MO.2 (Series),
stained earth MO.3 and sample earth MO.4 and other material objects as marked by
the prosecution were recovered from the spot.
(vi) Thereafter, PW.22 conducted inquest on the dead body of the deceased
in the presence of panchayatdars and prepared an Inquest Report Ex.P.23.
Thereafter, the dead body was subjected to post mortem by Doctor PW.15, attached
to the Government Hospital, Aranthangi. He has issued post mortem certificate
Ex.P.14. PW.15 has opined that the deceased died out of burn injuries
sustained. Identity of the body was not known. Hyoid bone and other parts were
preserved for finding the identity. PW.22 caused necessary publications through
T.V., news papers and bit notices etc.,. On 30.11.2004, PW.22 received an
information from PW.4 that the deceased Krishnamoorthy was not found and he was
missing for 5 months. Then, he proceeded to place and verified from PW.4. He
has also received photograph from her. All the photographs which were marked as
MO.38 (Series) and MO.39(Series) and photos which was marked as MO.11 (Series)
received from PW.4 were sent along with skull and other parts of the body for
the purpose of super imposition. The super imposition test was done as a result
of which, PW.19 has given her opinion under Ex.P.17 that it was the dead body
was that of the said Krishnamoorthy.
(vii) Pending investigation, on 29.3.2005 the first accused was arrested
and he gave a confessional statement in the presence of V.A.O. PW.11 and his
assistant and the same was recorded and the admissible part of that evidence was
marked as Ex.P.7. Pursuant to the confession, MO.21 TVS Moped and other
materials objects were recovered as put-forth by the prosecution. The second
accused was also arrested. Both the accused were sent for judicial remand.
(viii) All these Materials Objects were subjected to chemical analysis,
which resulted in Chemical Analysis Report.
(ix) On completion of the investigation, the investigator filed a final
report against the accused as per the charges. The case was committed to the
Court of Sessions. Necessary charges were framed.
3. 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. on the incriminating
circumstances found in the evidence of the prosecution witnesses, which was
flatly denied on the part of the accused. No defence witness was examined. The
trial Court after hearing the arguments advanced by either side and on
considering the materials available on record, took the view that the
prosecution has proved its case beyond reasonable doubts and found the accused
guilty of the charge of murder and awarded punishment referred to above.
Aggrieved over the same, the first accused has brought forth this appeal before
this Court.
4. Advancing his arguments on behalf of the appellant, Mr.K.Balasundharam,
learned counsel appearing for the appellant, would submit as follows:-
(i) In the instant case, the prosecution had no direct evidence to offer.
(ii) PW.10 has turned hostile. The only witness relied on by the
prosecution was PW.9, who was the brother-in-law of the deceased Krishnamoorthy
and the occurrence was taken place in the night hours of 15.6.2004. According
to PW.9, the deceased was last seen in the company of the first accused. Even
according to PW.9, the deceased was found missing from 15.6.2004. Had it been
true, immediately, he should have taken it to the notice of the police or
informed to anybody else, which had not been done by PW.9. PW.4 is the mother.
She had also not given any complaint about missing his son. Hence, the
evidence of PW.9 is improbable and unbelievable. After a period of 5 months, a
case was registered under Section 302 IPC. All over the period, A.1 and A.2 was
very well staying in the same place.
(iii) Insofar as the prosecution relying on the report given by the
expert on superimposition test, there is no conclusion that it was the skull of
the deceased Krishnamoorthy. The prosecution has miserably failed to point out
the nexus or the complicity of A.1 in the instant case.
(iv) 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.
(v) PW.22 has filed the final report in the case wherein he has stated
that there was an earlier report. He would state that only on suspicion, the
accused were arrested. All those material objects were found after a long
period pursuant to the alleged confession. The recovery of material objects and
the alleged confession were all highly improbable and unbelievable.
(vi) The trial court was completely mislead by the extraneous
circumstances in bringing home the guilt of the accused. Hence, the appellant
is entitled for acquittal in the hands of the Court.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions.
6. The Court paid its utmost attention to the submissions and made a
thorough scrutiny on the entire materials available on record.
7. The gist of the prosecution was that on 15.6.2004, one half burnt dead
body was found in the field of PW.1, who would give a complaint Ex.P.1 to the
police and on the strength of which a case came to be registered for murder and
investigation was taken up. The identity of the dead body could not be found.
Hence, the investigator made wide publications in TVs, news papers etc.,
Thereafter, he received an information that one Krishnamoorthy, the son of PW.4
was found missing for 5 months. The investigator probed into the matter and
verified the marriage photographs and other photos of the deceased from PW.4.
He sent the skull and other parts of the body of the deceased along with photos
for super imposition test as a result of which, it was clearly identified that
it was the skull of the said Krishnamoorthy. The prosecution was successful
enough to prove the fact that, the half burnt dead body was that of the said
deceased Krishnamoorthy.
8. According to the prosecution, there was illicit intimacy between the
second accused and the appellant. On 15.6.2004, when the deceased
Krishnamoorthy was in his house, he was given an injunction to brought him under
unconscious and took him outside to the field of PW.1 and set him ablaze. The
prosecution had no direct evidence to offer. It rested on circumstantial
evidence.
9. Under these circumstances, in a given case like this, the prosecution
must be able to prove the necessary circumstances. The only one evidence
available to the prosecution is the evidence of PW.9. According to PW.9, 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. At that time, though the first
accused called Krishnamoorthy to accompany him in the TVS Moped, the deceased
refused to go with him but the accused compelled him and took with him.
Thereafter, PW.9 did not see Krishnamoorthy. The evidence of PW.9 is highly
improbable and unacceptable for more reasons than one. PW.9 has married the
sister of Krishnamoorthy and thus, he is brother-in-law of the deceased. On the
night hours of 15.6.2004, had it been really true that A.1 had compelled the
said Krishnamoorthy to accompany him and he went along with him, naturally, when
Krishnamoorthy was found missing from the next day morning, PW.9 would have
definitely questioned the first accused about the same. It is not in dispute
that the first accused staying in the same place. PW.9 had never questioned the
first accused nor informed to PW.4, the mother of the deceased or any one about
the last seen theory. Neither PW.9 nor PW.4 approached the police for a number
of months as to the missing of the said deceased Krishnamoorthy.
10. The statement of PW.9 was recorded by the investigator on 4.1.2005 but
the same had reached the Court only after a period of 2 months. At this
juncture, had it been really true the deceased Krishnamoorthy was found missing
and PW.9 had really seen the deceased in the company of A.1, he would have
definitely brought to the notice of the police or would have questioned A.1.
But he had not even come over for a period of 5 months, which by itself would
improbablise that PW.9 could not have seen them together.
11. In the instant case, if the evidence of PW.9 is not believed by the
Court, the prosecution had no more evidence to offer. Insofar as certain
recoveries made pursuant to the alleged confession made by the first accused,
the Court is of the considered opinion that mere recoveries, which were alleged
to have been recovered, would not be sufficient to bring home the guilt of the
accused in a case like this since the evidence of PW.9 is highly improbable and
unbelievable.
12. On the face of it, the prosecution has no more evidence to offer to
connect the accused with the crime. Though the prosecution is successful enough
to point out the fact that it was the dead body of the said Krishnamoorthy, the
prosecution was unable to prove the nexus of the crime with the appellant before
the Court. But, the lower Court without proper appreciation of the materials
available on record, has taken an erroneous view and found the appellant
guilty, which has got to be set right and that could be done only by upsetting
the judgment of the lower Court and it is, accordingly, set aside.
13. In the result, the Criminal Appeal is allowed. The appellant is
acquitted of the charges. The appellant is directed to be released forth with
unless his presence is required in connection with any other case. Fine amount,
if any, was paid by the appellant, the same shall be refunded to him.
asvm
To
1.The Principal Sessions Judge,
Pudukkottai.
2.Inspector of Police,
Aranthangi & Taluk,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.