Criminal Appeal No. 424 of 1999 · Madras High Court
Case at a glance
Provisions considered
- Indian Penal Code, 1860 ss. 201, 302, 364
- Code of Criminal Procedure, 1973 s. 313
Key paragraphs
- Para 1515. Under the circumstances, the Court has to necessarilyreject the contention of the counsel for the State and the reasonsgiven by the trial Court, as the trial Court has not properlyappreciated the case in proper perspective, but has been carriedaway by the illicit intimacy of…
Judgment
BAIL SLIP---------Appellant viz. Babu (Accused No.1 in S.C.No.17 of 1993 on thefile of the Additional Sessions Judge, Tiruvannamalai) wasdirected to be released on bail in and by the order of this Courtdated 6.11.2000 and made in Crl.M.P.No.7532 of 2000 in Crl.A.No.424 of 1999.Appellant viz. Devagi (Accused No.2 in S.C.No.17 of 1993 onthe file of the Additional Sessions Judge, Tiruvannamalai) wasdirected to be released on bail in and by the order of this Courtdated 28.8.2000 and made in Crl.M.P.No.4956 of 2000 in Crl.A.No.424 of 1999.IN THE HIGH COURT OF JUDICATURE AT MADRASDated 21.07.2005Coram :THE HONOURABLE MR.JUSTICE N.DHINAKARandTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMCriminal Appeal No.424 of 19991.Babu2.DevagiAppellants/Accused 1 and 2v.State, represented by Inspector of Police, Kalambur Police Station. RespondentCriminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment dated 25.03.1999 made in Sessions Case No.17 of 1993 on the file of the Additional SessionsJudge, Thiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr.V.Gopinath, Senior Counsel, forMr.K.Sevarangan for A1Mr.S.Sivakumaran for A2For Respondent: Mr.S.Jayakumar, Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered byM.CHOCKALINGAM, J.)This appeal has been brought forth by the appellants who aretwo in number. They stood charged, were tried and found guiltyfor the offences punishable under Sections 364, 302 and 201 of the Indian Penal Code and were awarded life imprisonment for theoffence punishable under Section 302 of the Indian Penal Code. Noseparate punishment was awarded for the other two penal provisionsof law.
The short facts necessary for the disposal of the appealcan be summarized as follows :(a) P.W.9 is the second wife of the deceased. The secondaccused is the first wife of the deceased. Accused-1 is theparamour of accused-2. P.W.8 is the brother of the deceased.P.W.10 is the father of P.W.9. P.Ws.8 to 16 were residents at Vengupattu village. P.Ws.1 to 4 were the residents of Vadamathimangalm vilalge. The first accused had illicit intimacywith the second accused, which came to the knowledge of thedeceased and there used to be quarrels between the deceased andthe second accused. The illicit intimacy between both theaccused was also brought to the notice of the Panchayat PresidentP.W.23 and they were also advised by P.W.23. Accused 1 and 2,in order to, screen the illicit affairs used to stay in Shyamalalodge. According to the evidence of P.W.17, the owner of thelodge and Ex.P.20, the register maintained by him regardingallotment of rooms, the first accused has signed the register, Ex.P.20 on number of occasions.
(b) On 25.03.1992 P.W.11 found both the accused sitting in abus which was bound to Sholingar. On 27.03.1992 at about 08.30am P.W.1 the Village Menial of Vadamathimangalam village foundthe dead body of the deceased near a railway track and he informedP.W.2, the Village Administrative Officer, who visited the scene, saw the dead body and gave a report to P.W.25, the Head Constable https://hcservices.ecourts.gov.in/hcservices/ attached to Kalambur police station. On the strength of thatreport, Ex.P.6, a case came to be registered in crime No.196/92for the offence punishable under Section 302 of the Indian PenalCode. Express reports were prepared and sent to Court. Ex.P.7 isthe copy of the printed first information report. (c) P.W.28, who was in charge of the Arani Police station, on receipt of a copy of the report, proceeded to the scene ofoccurrence at 06.45 pm and made an inspection in the presence ofwitnesses and panchayatdhars.
He prepared an observation mahazar, Ex.P.5 and drew a rough sketch, Ex.P.56 in the presence of P.Ws.1and 2. He seized blood stained soil and sample soil, M.Os.8 and9 from the place where the dead body was lying, under a mahazar, Ex.P.4. He also recovered blood stained gravel and sample gravel,M.Os.21 and 22 under a mahazar, Ex.P.58. He recovered a knife,M.O.1 under a mahazar, Ex.P.1. Inquest was conducted on the deadbody of the deceased between 08.00 pm and 11.00 pm on that day andEx.P.57, inquest report was prepared by him. He issued Ex.P.9,requisition to the doctor for conducting postmortem. (d) On receipt of the requisition, Ex.P.9, P.W.5, the Assistant Surgeon attached to Arani Government Hospital, conductedautopsy on the dead body and found the following injuries : 1. Three incised wound, transverse, on the left side of themiddle of neck ½" apart, size ¾" x ¼" x 1 ½". Piercingblood vessels and trachea. 2. Two incised wounds, transverse, in front of the neck 1"x ¼" x 1".
An oblique incised wound ¾" x ¼" x 2" in the right sideof the chest over the liver.
A vertical incised wound in the right flank 3" x ¼" x1".
A vertical incised wound 3" x ¼" x 2" in the right halfof the front of the upper abdomen.
An oblique incised wound in the centre of the right palm½" x ¼" x ¼".
An oblique incised wound ¾" x ¼" x piercing theabdominal cavity 2" below and latera to the umbilicusabout 6" length of loop of small intestine protrudingoutside the abdomen.
A vertical incised wound 3" x ¼" x 1" in the right halfof the lower part of back.
A vertical incised wound ¾" x ¼" x 1" in the right halfof the back 3" below the injury No.8.
A vertical incised wound ½" x ¼" x ½" in the lower partof the right half of the back near the vertebral column. https://hcservices.ecourts.gov.in/hcservices/ He issued postmortem certificate, Ex.P.10, wherein he has opinedthat the deceased died of shock and haemorrhage due to multiplestab injuries and injury to liver, lung, intestine, neck, bloodvessels and trachea. The skull of the deceased was preservedsince the body was not identified till then. (e) P.W.28 continued with his investigation. He caused theparticulars of the deceased to be published in the newspapers on28.03.1992. He examined P.Ws.18 and 23 on 29.03.1992. On30.03.1992 the Head Constable, P.W.25 brought P.Ws.8 to 10 to thepolice station. P.W.28 took P.Ws.8 to 10 to the GovernmentHospital and they were shown the skull of the deceased, which theyidentified as that of the deceased. The skull of the deceased wasalso shown to P.W.9 and she also identified as that of thedeceased.
At about 05.00 pm on that day P.W.9 produced Ex.P.12letter, which was seized under a mahazar, Ex.P.19 attested byP.W.10. On 01.04.1992 the material objects were sent for chemicalanalysis through Court and the mahazars and other papers were sentto Court. (f) P.W.29 the Inspector of Police, Arani, who reported toduty after expiry of leave, took up further investigation. Accused1 and 2 were arrested on 21.04.1992. and when they were examinedin the presence of witnesses, they voluntarily gave confessionstatements. Accused-1, pursuant to the admissible portion of hisstatement, Ex.P.60 produced a black money purse, M.O.10 belongingto the deceased, which was recovered under a mahazar, Ex.P.8,wherein the photograph of the deceased was found. Pursuant to theadmissible portion of the confession statement given by accused-2,Ex.P.59, Ex.P.41 letter was recovered. This recovery was madefrom inside the house on being produced by her.
Based on thestatement of the first accused the register of Shyamala lodge, Ex.P.20 was recovered from P.W.17, the owner of the lodge. Fromthere, the accused took P.W.29 to Sholingar and there from theresidence of P.W.19, a cycle, M.O.16, which was used by thedeceased was recovered under a mahazar, Ex.P.36. The accused weretaken to the police station and the specimen handwriting of thefirst accused, Ex.P.37 was taken in the presence of witnesses. Exs.P.12 and P.41, which were recovered from P.W.9 and the secondaccused respectively were forwarded to handwriting expert andsubjected to verification and on verification they were found tobe tallying with the handwriting of the first accused. Ex.P.55is the report of the handwriting expert. He was examined beforethe Court as P.W.6. (g) P.W.26, the Assistant Director of the ForensicDepartment examined the photographs and the skull forwarded tothe lab by the Investigating Officer by using Electronic Skull https://hcservices.ecourts.gov.in/hcservices/ Identification Device and on such examination he found that theface in the photographs and the skull outlines are found to be ingood agreement.
Ex.P.18 is his report. On completion of theinvestigation, the Investigating Officer filed the final report on31.05.1993.3. In order to substantiate the charges levelled against theappellants/accused, the prosecution examined 29 witnesses andrelied on 63 exhibits and 23 material objects. On completion ofthe evidence on the side of the prosecution, all the accused werequestioned under Section 313 of the Code of Criminal Procedure asto the incriminating circumstances found in the evidence of theprosecution witnesses, and they flatly denied the same as false. No witness was examined on their side, nor any document wasmarked. After hearing both sides, the trial Court was of theopinion that the prosecution has proved its case beyond allreasonable doubts and found the accused guilty for the chargeslevelled against them and awarded sentences as referred to aboveand this is the subject matter of challenge before this Court inthis appeal.
4. Learned senior counsel appearing for the appellants, interalia, would submit that in the instant case the prosecution had nodirect evidence to offer. There is sufficient evidence to showthat accused 1 and 2 had illicit relationship, but thecircumstances relied on by the prosecution were not sufficient toprove the guilt of the accused. 5. The learned senior counsel would add that in the instantcase, the prosecution mainly relied on two circumstances. One isthe evidence of P.W.3, who heard the distressing cries of thedeceased immediately after the occurrence on 26.03.1992 at 05.00pm. P.W.3, in his evidence has stated that on hearing thedistressing cries, he went and saw the deceased lying on theground and when he questioned the deceased, the deceased did notutter any word about the accused. Had the accused committed thecrime, as alleged by the prosecution, then the deceased wouldhave certainly mentioned so to P.W.3, but it was not so.
Thiswould indicate that the occurrence did not take place in themanner put forth by the prosecution. 6. The second circumstance much relied on by the prosecutionbefore the lower Court and accepted by the trial Judge areletters, Exs.P.12 and P.41. Ex.P.12 letter was produced by P.W.9during investigation and Ex.P.41 was produced by accused-2pursuant to the confession statement recorded by the InvestigatingOfficer, which were subjected to verification by a handwritingexpert. It is pertinent to point out that the handwriting experthas opined that the handwriting in both the letters tally with the https://hcservices.ecourts.gov.in/hcservices/ handwriting of the first accused and both the letters must havebeen written by the same person. In the instant case, the veryreading of the letters would clearly indicate that both theletters must have been written by the deceased, and therefore, itwould not certainly connect the accused with the crime and apartfrom that, the prosecution has relied on the identification of theaccused by P.Ws.11, 12 and 14 at the police station, which wouldshow that accused 2 was taken to the police station even as earlyas on 28.03.1992 and she was detained in the police station andthe arrest alleged to have been made by the police on 21.04.1992and the subsequent confession statement and the recovery ofEx.P.41 would, therefore, have no evidentiary value .7.
Added further the learned counsel for the appellants thatin the instant case even one circumstance to connect the accusedto the crime has been pointed out by the prosecution and hencethe lower court without considering the same has found that theprosecution has proved all the circumstances to connect theaccused to the crime. 8. The Court heard the learned Additional Public Prosecutoron the above contentions.9. The Court paid its full attention on the submissions made, and made a thorough scrutiny of the materials available.10. It is not in controversy that the deceased who was thehusband of accused 2 and P.W.9 died out of homicidal violence andthe dead body was subjected to postmortem following an inquest bythe Investigating Officer. P.W.5, the doctor, who conductedpostmortem on the body of the deceased has issued postmortemcertificate, Ex.P.10, wherein he has opined that the deceased diedof shock and haemorrhage due to multiple stab injuries and injuryto liver, lung, intestine, neck, blood vessels and trachea. Thefact that the deceased died of homicidal violence was notquestioned by the accused either before the lower Court or beforethis Court and thus there is no dispute that the deceased died ofhomicidal violence.
In the instant case, the prosecution has no directevidence to offer and it had to rest its case solely on thecircumstantial evidence. It is well settled principle of lawthat in cases of circumstantial evidence, a duty is cast upon theprosecution to bring forth sufficient circumstances and apart fromthat to prove those circumstances, make a clear chain of thosecircumstances so as to indicate that the accused alone committedthe offence. In the instant case, the prosecution failed to doso. https://hcservices.ecourts.gov.in/hcservices/
The first and the foremost circumstance, which theprosecution failed to prove is the evidence of P.W.3 P.W.3 hasstated in his evidence that on hearing the distressing cries, hewent and saw the deceased and when he asked the deceased as towhat happened, the deceased had told him that somebody has stabbedhim and and left him there. The learned senior counsel rightlypointed out that had it been true that accused 1 and 2 wereinvolved in the crime, who were none else, than the wife of thedeceased and her paramour, the deceased would certainly havestated that it was the accused who attacked him, but he had notstated so. This would cast a doubt on the case of theprosecution.
The next circumstance put forth by the prosecution wasthe two letters alleged to have been written by the first accused. The two letters were placed before the Court. Ex.P.12, whichaccording to P.W.9, the second wife of the deceased, was writtenby her husband and the second letter was recovered on the strengthof the confession statement given by the second accused, which ismarked as Ex.P.41. The evidence of the handwriting expert thatboth the letters were written by the same person would destroy thecase of the prosecution. P.W.9, the wife of the deceased hasstated in her evidence that the letter, Ex.P.12 contained thehandwriting of her husband and this would clearly show that theother letter should also have been written by the deceased andtherefore, it is highly doubtful whether Ex.P.41 could have beenrecovered by the police agency as put forth by the prosecutionfrom the custody of the second accused. There is ample evidence toshow that the second accused was arrested even at the end of Marchand she was retained in the police station. According to theprosecution version, she was arrested only on 21.04.1992 on whichday she voluntarily gave a confession statement, based on which, letter Ex.P.41 was recovered from the back side of her house. Ifthat be so, the alleged arrest, the confessional statement and theconsequential recovery of the letter, Ex.P.41, have got to berejected as one which were created by the prosecution. If therecovery of Ex.P.41 cannot be believed, then the Court necessarilyhas to reject the other part of the evidence and no evidentiaryvalue can be attached to Ex.P.41 or to Ex.P.12.
In the absence of these two strong circumstances, allother circumstances placed before the Court were all speaking tothe illicit intimacy of accused 1 and 2. It is never disputedthat accused -1 and accused -2 had illicit intimacy and it hasbeen spoken to by P.W.17, the owner of Shymala Lodge who produceda register, wherein the first accused had signed on so manyoccasion and had stayed with the second accused in the lodge, butthat would not in anyway show the nexus of the accused with thecrime. It is true that the prosecution has brought forth to the https://hcservices.ecourts.gov.in/hcservices/ notice of the Court strong suspicion against both the accused, butthe settled principles of law is that any amount of suspicion willnot be a clear proof. In the instant case, the circumstances, which were placed before the Court, according to the prosecution, though were sufficient to connect the accused to the crime, inthe opinion of the Court, those circumstances are neithersufficient nor capable of connecting the accused with the crime.
Under the circumstances, the Court has to necessarilyreject the contention of the counsel for the State and the reasonsgiven by the trial Court, as the trial Court has not properlyappreciated the case in proper perspective, but has been carriedaway by the illicit intimacy of the accused and on the evidencelet in before the Court, has found them guilty, which in theopinion of the Court, is perverse. Therefore, the judgment ofthe lower Court has got to be undone only by upsetting thejudgment and we accordingly do so. The conviction and sentenceimposed on the appellants are set aside and the appellants areacquitted of all the charges. The criminal appeal is allowed. The bail bonds executed by the appellants shall standcancelled.21.07.2005 mfSd/Asst. Registrar/true copy/Sub Asst. RegistrarCopies to1.The Additional Sessions Judge, Thiruvannamalai2.The Additional Sessions Judge, Thiruvannamalai through the Principal Sessions Judge, Thiruvannamalai.3. The Judicial Magistrate, Arni.4. The Judicial Magistrate, Cheyyaru5. -do- Through The Chief Judicial Magistrate, Tiruvannamai. 6. The District Collector, Thiruvannamalai. 7. The Director General of Police, Chennai. 8. The Public Prosecutor, High Court, Madras9.The Superintendent, Central Prison, Vellore.10. The Superintendent, Women's Prison, Vellore. 11. The Inspector of Police, Kalambur Police Station.1 cc to Mr.K.Selvarangan, Advocate, SR.30023mab (co)dv/29.7.Crl.A.No.424 of 1999
Questions this judgment answers
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 201, 302, 364; Code of Criminal Procedure, 1973 — s. 313.
Which court decided this case, and when?
Madras High Court, on 21 Jul 2005. The bench was M CHOCKALINGAM.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.