{"id":182043,"date":"2010-04-26T00:00:00","date_gmt":"2010-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/palanichamy-vs-inspector-of-police-on-26-april-2010"},"modified":"2014-08-12T10:28:45","modified_gmt":"2014-08-12T04:58:45","slug":"palanichamy-vs-inspector-of-police-on-26-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/palanichamy-vs-inspector-of-police-on-26-april-2010","title":{"rendered":"Palanichamy vs Inspector Of Police on 26 April, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Palanichamy vs Inspector Of Police on 26 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 26\/04\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE T.MATHIVANAN\n\nCriminal Appeal (MD) No.214 of 2008\n\n1.Palanichamy\n2.Kannagi alias Kaveri\n3.Krishnammal\t\t\t\t\t\t ... Appellants\n\nVs\n\nInspector of Police,\nEriodu Police Station,\nVedasanthur Taluk,\nDindigul District. \t\t\t \t\t  ... Respondent\n\n\nCriminal Appeal filed under Section 374(2) of Cr.P.C. against the judgment\nof the Additional Sessions Judge (Fast Track Court), Dindigul in S.C. No.168 of\n2005 dated 25.03.2008.\n\n!For Appellants    ...\tMr.D.Selvaraj\n^For Respondent\t   ...\tMr.M.Daniel Manohar,\n\t\t\tAddl. Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by
\nM.CHOCKALINGAM, J.)<\/p>\n
\tChallenging the judgment of the Additional Sessions Judge (Fast Track
\nCourt), Dindigul in S.C. No.168 of 2005 dated 25.03.2008, whereby the appellants
\n\/ accused 1 to 3 stood charged, tried, found guilty and awarded punishment as
\nunder, the present Criminal Appeal has been filed.\n<\/p>\n
Accused          Charges            Finding              Punishment\n              under Section\n\nA1 to A3       120(b) IPC          Found guilty    A1 to A3 were sentenced to  pay a\n                                                   fine of Rs.1,000\/- each  in\n                                                   default to undergo\n                                                   3 months R.I. each.\n\nA1 to A3         364 IPC           Found guilty   A1 to A3 were sentenced to undergo\n                                                  2 years R.I. each and to pay a\n                                                  fine of Rs.1000\/- each in default to\n                                                  undergo 6 months R.I. each.\n\nA1 and A2        302 IPC           Found guilty   A1 and A2 were sentenced to undergo\n                                                  life imprisonment each and to pay a\n                                                  fine of Rs.2000\/- each in default\n                                                  to undergo 6 months R.I. each.\n\nA1 and A2        201 IPC            Found guilty  A1 and A2 were sentenced to undergo\n                                                  2 years R.I. each and to pay a fine of\n                                                  Rs.1000\/- each in default to undergo\n                                                  3 months R.I. each.\n\nA1 to A3         404 IPC            Found guilty  A1 to A3 were sentenced to undergo\n                                                  2 years R.I. each and to pay a fine of\n                                                  Rs.1000\/- each in default to undergo\n                                                  6 months R.I. each.\n\nA3            302 r\/w 109 IPC        Found guilty   A3 was sentenced to undergo life\n                                                    imprisonment and to pay a fine of\n                                                    Rs.2000\/- in default to undergo\n                                                    6 months R.I.\n\n<\/pre>\n
\t2. The short facts necessary for the disposal of this appeal can be stated
\nas follows:-\n<\/p>\n
\t(i) P.W.1 is the brother of the deceased Pushpavalli.  The son of the
\nthird accused by name Kanagapandi and the deceased Pushpavalli fell in love with
\neach other, which culminated in their marriage. They had a female born, and
\nduring the relevant time, she was pregnant by five months. The third accused,
\nwho is the mother of Kanagapandi tried her best to separate them, but she failed
\nin her attempts. Then she hatched up a conspiracy with A-1 and A-2, to do away
\nwith the deceased Pushpavalli.\n<\/p>\n
\t(ii) On 30.03.2004 at about 1.00 p.m., she went to the house of the
\ndeceased, and under the guise of taking her to the hospital, she took her.
\nP.W.3, between 12.00 to 1.00 p.m., on that day, found the third accused taking
\nthe deceased. P.W.4, at about 3.45 p.m., saw A-2 and A-3 along with the
\ndeceased. P.W.5 witnessed the deceased in the company of A-3 and another, in a
\nbus. P.W.6 has seen the deceased as pillion rider in a two-wheeler, which was
\ndriven by A-2 on that day.  Thereafter, she did not come back.  P.W.1 and others
\nmade a search. They gave a complaint on 03.04.2004 and the same was registered
\nby the respondent-Police Station in Crime No.92 of 2004, against    A-2, A-3 and
\nothers. The said complaint was given by Kanagapandi, the husband of the
\ndeceased, alleging that his wife was missing. Equally, another complaint was
\ngiven and registered.\n<\/p>\n
\t(iii) While the matter stood thus, P.W.1 filed H.C.P.No.507 of 2004 and
\nalso, the mother of the deceased filed H.C.P.No.559 of 2004, and they were
\npending before this Court.  On enquiry, a Division Bench of this Court made a
\ncommon order directing the respondent-Police to register a case pursuant to
\nwhich, a case came to be registered in Crime No.140 of 2004 under Sections 147,
\n323, 294(b) and 364 IPC on 28.05.2004. The printed F.I.R.-Ex.P19 was despatched
\nto the Court and P.W.22 took up investigation.\n<\/p>\n
\t(iv) While the matter stood thus, A-1 was arrested on 25.01.2005.  He came
\nforward to give a confessional statement voluntarily and the same was recorded
\nby P.W.22 in the presence of P.W.10 and other witnesses. The admissible portion
\nof the confessional statement of the first accused is marked as Ex.P2. On the
\nbasis of the confessional statement, A-1 took the police party to the place
\nwhere the dead body was buried and P.W.22 addressed a communication to P.W.15-
\nTahsildar in whose presence the dead body was exhumed and material objects were
\nalso recovered.  Ex.P20 is the Exhumation Report. P.W.15 conducted inquest on
\nthe dead body in the presence of witnesses and Panchayatars. Subsequently, the
\ncase was converted to Sections 302, 120(b) and 201 of IPC.  P.W.22 prepared
\nEx.P3-Observation Mahazar and Ex.P24-Rough Sketch.\n<\/p>\n
\t(v) The Doctor, P.W.20, on receipt of the requisition conducted autopsy on
\nthe dead body and has issued Ex.P21-Post Mortem Certificate that the deceased
\nwould appear to have died of compression of neck and she would have died 8 to 12
\nmonths prior to exhumation and post mortem.\n<\/p>\n
\t(vi) Pending the investigation, A-2 and A-3 were arrested and confessional
\nstatements were also recorded.  The admissible portion of the confessional
\nstatements of the second and third accused are marked as Ex.P8 and Ex.P9,
\nrespectively. From the second accused, M.O.5-a pair of ear studs, were recovered
\nand from the third accused, M.O.4-Thali was recovered under a cover of Mahazar.
\nThe Investigating Officer recorded the statements of the witnesses.\n<\/p>\n
\t(vi) On exhumation of the dead body, only the skull part was available
\nalong with bones which were sent for Superimposition Test along with the
\nphotographs. The Superimposition Test was conducted by P.W.16 and the Forensic
\nSciences Department gave a report under Ex.P18 wherein it was opined that, it
\nwas the skull of Pushpavalli and the same was received and placed before the
\nCourt. On completion of the investigation, the Investigating Officer filed Final
\nReport. The case was committed to the Court of Sessions and necessary charges
\nwere framed against the accused.\n<\/p>\n
\t3. In order to substantiate the charges levelled against the accused, the
\nprosecution examined 22 witnesses and relied on 28 exhibits and 9 M.Os. On
\ncompletion of the evidence on the side of the prosecution, the accused were
\nquestioned under Section 313 Cr.P.C. as to the incriminating circumstances found
\nin the evidence of the prosecution witnesses, which were denied by the accused.
\nNo defence witness was examined. The Trial Court after hearing the arguments
\nadvanced on either side and considering the materials available on record, took
\nthe view that the prosecution has proved the case beyond reasonable doubt and
\nfound the accused guilty of the charge of murder and awarded punishment.
\nChallenging the conviction and sentence as referred to above, this appeal has
\nbeen filed by the accused\/ appellants.\n<\/p>\n
\t4. Advancing arguments on behalf of the accused \/ appellants,
\nMr.D.Selvaraj, learned counsel for the appellants, made the following
\nsubmissions.\n<\/p>\n
\t(i) The specific case of the prosecution was that one Pushpavalli, wife of
\none Kanagapandi and the daughter-in-law of A-3 was done to death following a
\nconspiracy hatched up by A-3 along with A-1 and A-2. The witnesses were examined
\nto speak about the last seen theory. P.Ws.3, 4, 5 and 6 were examined to the
\neffect that A-3 came to the house of Pushpavalli and she was taken from the
\nhouse at about 1.00 to 2.00 p.m. on 30.03.2004 and that she was actually found
\nin the company of A-3 and another in a bus and that, P.W.6 has also seen A-2
\ntaking her in a bike that evening. Insofar as the last seen theory put forth by
\nthe prosecution, it could not be true since P.W.21 and P.W.22 have categorically
\nstated that those witnesses have not spoken to that effect at the time of their
\nexamination under Section 161 of Cr.P.C. and therefore, the prosecution has
\nmiserably failed to show that the dead body which was taken out by exhumation
\nwas that of Pushpavalli.\n<\/p>\n
\t(ii) Certain photographs were given to the Forensic Department for the
\npurpose of tests, but there is no evidence to indicate from whom the photographs
\nwere received or the photographs which were received were that of Pushpavalli.
\nThus, the report what was received from the Forensic Sciences Department was in
\nrespect of photographs and that was actually the skull which was placed, but
\nthere is no material to indicate that the photograph which was placed before the
\nForensic Sciences Department was that of Pushpavalli, and there is no evidence
\navailable as to how it was recovered and from whom it was recovered.\n<\/p>\n
\t5. Learned counsel for the appellants brought to the notice of this Court
\nthat 2 F.I.Rs. were registered, one in Crime No.92 of 2004 on 03.04.2004, while
\nthe other in Crime No.140 of 2004 on 28.05.2004. Insofar as the first crime is
\nconcerned, i.e. Crime No.92 of 2004, four accused are shown in which A-2 and A-3
\nare noticed, but the name of A-1 is not found. Equally in Crime No.140 of 2004,
\nnumber of accused are shown and the Investigator has admitted that in both the
\ncrime numbers, number of witnesses were examined and the statements were
\nrecorded, but they were not at all produced before the Court.  In the H.C.Ps.
\nfiled before this Court, affidavits were filed by the Investigating Officer to
\nthe effect that Pushpavalli was very well alive. It is pertinent to point out
\nthat both these H.C.Ps. were filed later at that point of time and therefore,
\nthe investigator who took up investigation in these crime numbers, one of which
\nwas subsequently altered into Section 302 IPC, has placed the affidavit before
\nthe Court that she was very well alive. Apart from that, the said Investigator
\nhas admitted before the Court that all the witnesses who were examined by him
\nhave given a statement to the effect that Pushpavalli was alive and thus he has
\ngone to the extent of giving evidence before the Court that Pushpavalli was very
\nwell alive and under such circumstance, coupled with the fact that there is no
\nevidence available as to the identity of the person who died and the evidence of
\nthe Investigating Officer that Pushpavalli was very well alive from the
\nstatements of the witnesses, the prosecution has not even proved to the effect
\nthat Pushpavalli died or the evidence which were produced before the Court
\npertains to Pushpavalli. In that score also, the prosecution has miserably
\nfailed to prove the same.\n<\/p>\n
\t6. Learned counsel for the accused \/ appellants further added that insofar
\nas the alleged recoveries are concerned, these are all cooked up in order to
\nsuit the case of the prosecution and hence, the prosecution has miserably failed
\nto prove the case and the Trial Judge has taken an erroneous view and there is
\nno iota of evidence in respect of conspiracy and hence the Trial Judge should
\nhave acquitted the accused, but had taken an erroneous view in order to find
\nthem guilty, and therefore, the judgment of the Trial Court has got to be set
\naside.\n<\/p>\n
\t7. This Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions made and also
\nscrutinised the materials available.\n<\/p>\n
\t8. As could be seen from the available materials, the prosecution
\ncommenced its story that aggrieved over the marriage of her son Kanagapandi with
\nthe deceased Pushpavalli, A-3 hatched up a conspiracy with A-1 and A-2. At the
\noutset, it must be made clear that the prosecution has not even placed any
\nevidence or material to indicate that there was any conspiracy among them at any
\npoint of time and hence, the prosecution failed in its conspiracy theory.\n<\/p>\n
\t9. Insofar as the role of the accused \/ appellants in causing the death of
\nPushpavalli and also charges pertaining to the causing of the death of
\nPushpavalli and the screening of evidence, the Court has noticed the following
\ninfirmities, which in the considered opinion of this Court, would suffice to
\nreject the case of the prosecution.\n<\/p>\n
\t10. The specific case of the prosecution was that Pushpavalli, the wife of
\nKanagapandi was done to death and hence the factum of death of Pushpavalli must
\nbe proved in the instant case. The specific case of the prosecution was that A-3
\nwho came to the house of Pushpavalli took her under the guise of taking her to
\nthe hospital on 30.03.2004, but unfortunately all the witnesses who were
\nexamined as to the last seen theory of Pushpavalli with the accused namely
\nP.Ws.3, 4, 5 and 6, have categorically deposed that they have not specified the
\ndate, which shows that their evidence became shaky. The Investigator has
\ncategorically admitted that these witnesses have not spoken that Pushpavalli was
\ntaken by them or found in their company and thus, the last seen theory was
\nhighly doubtful.\n<\/p>\n
\t11. Insofar as the identity of Pushpavalli is concerned, the prosecution
\nhas not placed any evidence worth mentioning.  P.W.15-Tahsildar has exhumed the
\nbody and certain skeletons were found and it was also subjected to post mortem
\nand P.W.20-Dr.Meiyazhagan conducted the post mortem and to that effect, Ex.P21-
\nPost Mortem Certificate was also issued, which would show that due to the
\ninjuries the death has been caused. What was available was only a skeleton, and
\nin more particular, a skull and they were placed before the Forensic Sciences
\nDepartment for analysis. Certain photographs were also recovered and placed
\nbefore the analyst. It is true that P.W.16 has given a report to the effect that
\nSuperimposition Test which was done by him would indicate that what was
\nrecovered was actually that of the female in the photograph, but the question at
\nthat juncture would be whether the photograph was that of Pushpavallli.  Now it
\nhas  to be pointed out that the prosecution has not brought forth any evidence
\nfrom whom the photograph was actually received or how they got custody of the
\nsame.  In short, there is no evidence at all to show that the photograph that
\nwas available with the Police and placed before the Forensic Sciences Department
\nwas that of Pushpavalli. In such circumstance, though the superimposition test
\nwas in favour of the prosecution, in the absence of anybody to identify the
\nphotograph that it was Pushpavalli, the evidence put forth by the prosecution as
\nto the identity of the deceased, cannot be accepted.\n<\/p>\n
\t12. Added circumstance was that there were two H.C.Ps. in which a common
\norder came to be passed in H.C.P.Nos.507 and 559 of 2004, one at the instance of
\nthe brother and other at the instance of the mother of the deceased Pushpavalli,
\nand in both these H.C.Ps., the Investigating Officer and the Police Official
\nfiled an affidavit to the effect that Pushpavalli was alive and a common order
\ncame to be passed by this Court on 28.05.2004, pursuant to which a case came to
\nbe registered only for kidnapping and not for murder. Further, the Investigating
\nOfficer who was examined before the Trial Court, has categorically stated that
\nthe witnesses who were interrogated have given statements to the effect that
\nPushpavalli was alive. The affidavit filed by the Investigating Officer in the
\nH.C.Ps. coupled with the fact that all the witnesses who have been interrogated,
\nhave stated that Pushpavalli was alive and also in the absence of any evidence
\nas to the identity of the photograph which was placed before the Forensic
\nSciences Department, would clearly indicate that prosecution has miserably
\nfailed to bring home any one of the factual aspects required to take a decision
\nin the case. Added further, it is pertinent to point out that 2 F.I.Rs. were
\nfiled only by the same Police, one at the instance of the husband of the
\ndeceased and another at the instance of the order of this Court, and in both
\nthese cases, there was no proper investigation.  On the contrary, the case was
\nconverted to Section 302 IPC only on the arrest of A-1 having suspicion over him
\nand the Investigator would claim that it was A-1 who took them to the place of
\nburial and that skeleton was taken. The recovery which has been relied upon by
\nthe prosecution does not show the nexus of the accused with the crime in
\nquestion, since from the skeleton that was recovered, the prosecution was unable
\nto show that it was that of Pushpavalli.\n<\/p>\n
\t13. Under the circumstances, for the above stated reasons, the prosecution
\nhas not brought home the guilt of the accused and the prosecution has miserably
\nfailed to prove the conspiracy theory or there was a murder committed by the
\naccused.  Hence the learned Trial Judge has taken an erroneous view and it has
\ngot to be set aside.   Therefore the Criminal Appeal is allowed and the judgment
\nof conviction and sentence passed by the Additional Sessions Judge (Fast Track
\nCourt), Dindigul in S.C.No.168 of 2005, dated 25.03.2008, is set aside, and the
\nappellants \/ accused 1 to 3, are acquitted of all the charges levelled against
\nthem. The appellants \/ accused 1 to 3 are directed  to be released forthwith,
\nunless their presence is required in connection with any other case. The fine
\namount, if any paid by the accused, shall be refunded.\n<\/p>\n
KM\/VSG<\/p>\n
To<\/p>\n
1.The Additional Sessions Judge,
\n   Fast Track Court,
\n   Dindigul.\n<\/p>\n
2.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Palanichamy vs Inspector Of Police on 26 April, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-182043","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPalanichamy vs Inspector Of Police on 26 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/palanichamy-vs-inspector-of-police-on-26-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Palanichamy vs Inspector Of Police on 26 April, 2010 - 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