Kala @ Chandrakala v. State represented by Inspector of Police, Thingalur Police Station, Erode District

B A I L S L I P1.Kala @ Chandrakala, 2.Arthanari Gounder,The above said Appellants/Accused 1 & 2 were directed to bereleased on bail as per order of this Court dated 10.12.2007 andmade in Crl.MP.No.1/07 in CA.1022/07 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.06.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NO.1022 OF 20071.Kala @ Chandrakala.. Appellants/2.Arthanari Gounder Accused 1 & 2Vs.State represented byInspector of Police,Thingalur Police Station,Erode District(Crime No.51 of 2005) .. Respondent/Coimplainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned First AdditionalSessions Judge, Erode made in S.C.No.98 of 2007, dated 31.10.2007. For Appellant : Mr.N.ManoharanFor Respondent: Mr.N.R.Elango, APP - - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the First AdditionalSessions Judge, Erode made in S.C.No.98 of 2007, whereby appellantstwo in number stood charged, tried and found guilty under Section302 read with 34 IPC and 201 IPC. Originally there were threeaccused and since the third accused was absconding, the case wassplit up and the trial proceeded in so far as the appellants herein https://hcservices.ecourts.gov.in/hcservices/ are concerned and the trial court awarded life imprisonment and topay a fine of Rs.1000/-, in default to undergo 6 months S.I., eachunder Section 302 read with 34 IPC and also to undergo one yearsimple imprisonment each under Section 201 IPC.2.The short facts necessary for the disposal of this appealcan be stated as follows: a) P.W.11 on 20.5.2005 after seeing the gunny bag with adead body under the bridge, informed to P.W.1, the VillageAdministrative Officer. PW1, Village Administrative Officerproceeded to the spot at 1 p.m. along with his assistants and foundthe dead body of 30 years old male. b)Thereafter, P.W.1 immediately proceeded to therespondent police station and gave a complaint Ex.P.1 andimmediately the Sub-Inspector of Police rushed to the scene. On20.5.2005, the Inspector of police examined PW1 and recorded thestatement. The case was taken up for investigation. c) PW4 is the Sister of the accused. PW4 is living atSalem. A1 is the wife, A2 is the father of the first accused, A3 isthe nephew of the first accused. After marriage, the deceased wasliving at Kuppandanpalayam. The second accused insisted thedeceased to purchase 4 acres of land adjacent to his propertiesand asked him to go and live in his native place. Thereafter thedeceased was living with his wife, the first accused atVilaralimedu, Kavindapadi. They got only one son and one daughter.The deceased used to consume liquor and also used to enter intonumber of agreements for sale of the properties and received partof the consideration by which A1 and A2 were aggrieved. Thedeceased was in the habit of visiting his sister PW4 at Salem, oncein a week. He was also talking to her over phone atleast once intwo days. At last, on 12.5.2005, deceased Murugesan gone to thehouse of PW4 and stayed there for a full day and thereafterreturned. In the meanwhile, Since PW4 did not get any phone callfrom the deceased, came to the house of the deceased on 31.5.2005and when she arrived near the house of the deceased, the daughterof the deceased asked PW4 about her father and immediately PW4asked the first accused about the deceased. The accused repliedthat he had actually gone to her house only. At last, she made aconfession to PW4 that along with A2 and the absconding accusedPrakash, she committed murder of the deceased. Further,she made arequest not to divulge the same to any one else and made an appealto consider sympathetically and further she was prepared totransfer the title of certain properties to the children ofMurugesan. d)Thereafter, PW4 went to the police station and gave acomplaint and the same is marked as Ex.P.2. e).On the basis of the complaint given by PW1, acriminal case was registered in Crime No.51 of 2005 for the offencepunishable under Section 302 IPC on 20.5.2005 by P.W.24, the SubInspector of Police, and the investigation was pending. The printed https://hcservices.ecourts.gov.in/hcservices/ FIR is Ex.P.26. The Inspector of Police deputed PW22 to assist thedoctor to conduct postmortem.f)P.W.20, the Doctor attached to the Government Hospital,Gobichettipalayam, on receipt of the requisition, has conductedautopsy on the dead body of the deceased and has given acategorical opinion that since the dead body was at the decomposedstage, he could not fix the cause of death. The postmortemcertificate is marked as Ex.P.14. g. While pending the investigation, PW.26, theInvestigation officer caused the arrest of the first accused andshe gave a confessional statement and the admissible portion of theconfessional statement which is marked as Ex.P.6. Following thesame, she produced M.O.6 Motor Bike and M.O.17, Nylon Saree. Bothwere recovered under two independent mahazar.Thereafter, A2 wasalso arrested. Further, they were sent for judicial remand.Hesubmitted a requisition to the Magistrate concerned to send thepropertie for chemical analysis.He also submtited anotherreqisition to the Magistrate for conducting super-imposing test toidentify the deceased which resulted in Ex.P.20, the Chemicalreport, Ex.P.21 and 22, the Serologist reports and Ex.P.25 theHyoid Bone report. On completion of the investigation, PW.27, theInvestigating Officer has filed the final report.3.The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 27 witnessesand also relied on 29 exhibits and 22 M.Os. On completion of theevidence on the side of the prosecution, the accused was questionedunder Section 313 Cr.P.C. as to the incriminating circumstancesfound in the evidence of prosecution witnesses, which he flatlydenied as false. No defence witness was examined, but one documentwas marked Ex.D1. The court below heard the arguments advanced oneither side and took the view that the prosecution has proved thecase beyond reasonable doubt and found the accused/appellantsguilty as per the charge of murder and awarded life imprisonment,which is the subject matter of challenge before this court. 4. Advancing arguments on behalf of the appellant,Mr.Manoharan, learned counsel would submit that in the instantcase, the occurrence according to the prosecution has taken placeon 17.5.2005. A1 along with A2 and other absconding accused Prakashhas committed the murder of her husband and put the dead body in agunny bag and threw it on a land. In order to substantiate thecharges levelled against the accused, the prosecution had no directevidence to offer. It relied upon only circumstantial evidence.Firstly,the crcumstantial evidence of the prosecution was that thefirst accused had given an extra judicial confession to PW4, hersister-in-law on 31.5.2005. It was a case where the prosecutioncame out with a story that the occurrence had taken place on17.5.2005, but the extra judicial confession alleged to have beengiven on 31.5.2005 and thus there was a long interval and also itcould be seen from the available materials that the relationship of https://hcservices.ecourts.gov.in/hcservices/ PW4 with the first accused was strained. Under such circumstances,it is highly a matter of surprise that the first accused cameforward to make any confessional statement to PW4. Apart fromthat, it could be seen that PW4 and the deceased used to talk overphone atleast once in a few days. In the instant case, there was ainterval for nearly fifteen days, there was no phone call at allfrom the deceased. The only witness spoke about the fact was PW15,one Subayal who did not support the case of the prosecution. Whenthere was a long interval of fifteen days. there was no phone callat all, the conduct of PW4 was that she came to the house of thedeceased and at that time, the first accused came forward to give aconfessional statement, cannot be believed. Added further, in theinstant case, except the so called extra judicial confession,therewas no evidence available at all. Further, in the instant case,following the confessional statement given by the first accused toPW4, the Investigation Officer produced two material objects one isM.O.6, Motor Bike in which the dead body was actually transportedand also M.O.17, Nylon Saree with which the death was caused. Sincethe cause of death could not be fixed, the recovery of thesematerials pursuant to the confessional statement was of no avail tothe prosecution case. Under these circumstances, no way theprosecution brought home the guilt of the accused.5. Added further learned counsel that in the instantcase, the motive which was attributed for the heinous crime ofmurdering the husband by the first accused was feeble and flimsyand in so far as the second accused was concerned, the prosecutionhad no evidence at all. The trial Court has also taken in hissupport the provision under Section 106 of the Evidence Act bystating that the first accused happened to be the wife of thedeceased and therefore she should have been a special knowledgeabout the relevant factors, but she has not divulged anything andhence it can be taken against her. Such view taken by the trialcourt was erroneous. Hence, the prosecution has miserably failed toprove its case. Hence, the appellants are entitled to acquittal.6.The court heard the learned Additional PublicProsecutor on the above contentions and has paid its anxiousconsideration on the submissions made. 7.It is not in controversy that the dead body ofMurugesan, the husband of the first accused was found in a gunnybag on land. The dead body was identified. After the dead body wasidentified, enquiry was made by the Investigating Officer. Afterthe inquest was made by the Investigating Officer, the dead bodywas subjected to post-mortem by P.W.20, the Doctor, who conductedautopsy on the dead body was unable to fix the cause of the death.Though the postmortem doctor was unable to fix the cause of death,the prosecution was able to show that it was the homicidal deathand it was not the case of the prosecution that the deceased hascommitted suicide. The fact that the deceased died out ofhomicidal violence was never disputed by the appellants before thetrial court and hence it has got to be recorded so. https://hcservices.ecourts.gov.in/hcservices/

8. In order to substantiate the charges levelled againstthe appellants it is true that the prosecution had no directevidence to offer. The Court must follow certain principles of law.In a case like this, the prosecution must able to place and provenecessary circumstances pointing to the guilt of the accused andalso pointing to the fact that except the accused, no one couldhave committed the crime. The Court is satisifed that afterthorough analysis of the evidence, the prosecution had brought homethe first accused in the instant case. The occurrence had takenplace on 17.5.2005 at about 7.30 p.m. A1 was the wife of thedeceased. Both A1 and decreased were living along with theirchildren during the relevant point of time.It is not the case ofthe accused before the trial Court that he was away or they werenot living together. Under such circumstances, one would reasonablyaccept that A1 would speak how the death of her husband hashappened. From the evidence avialable, it can be seen that PW4 isthe sister of the deceased. She was living at Salem. Lastly, thedeceased visited her sister at Salem on 12.5.2005 and stayed fora day. Then he returned to his house and the occurence had takenplace on 17.5.2005. According to PW4, since she did not get anyphone call, she made a visit to the house of the deceased and atthat time, the daughter of the deceased came nearer to her andasked about her father.Immediately PW4 asked the first accusedabout the deceased. But, she gave an evasive answer stating that hewent to her house only at Salem. At last, she came forward to givea confessional statement narrating the crime. It is pertinent topoint out that it was PW.11 who first saw the dead body has broughtto the notice of Village Administrative Officer who in turn gave acomplaint Ex.P.1 to the respondent police station and on thestrength of which, a case came to be registered in Crime No.51 of2005 on 20.5.2005 itself. The investigation was pending. In theintervening circumstances, the extra judicial confession was madeby the first accused to PW4. Immediately PW4 went to the policestation and she has also gave a report Ex.P,2. Following the same,the investigator arrested the first accused and at that juncture,the accused came forward to give confession voluntarily andpursuant to which, she produced 2 Mos., first is M.O.6, Motor Bikewhich was used for transporting the dead body to the place where itwas actually placed and also M.O.17, Nylon Saree which according tothe accused was used for the purpose of causing death of herhusband. Now at this juncture, it is pertinent to point out that ifnot A1 divulged the truth to PW4, the investigator would not haveproceeded further or the act of the first accused could not havecome to the knowledge of the respondent police. The contention ofthe learned counsel that the relationship of PW4 and the firstaccuseds were strained and hence accused could not have comeforward to divulge such a heinous crime to PW4, cannot be accepted.Nowhere it is stated that they were in enimical term. Actually PW4used to visit his brother's house. The deceased also visited PW4'shouse at salem. It is true that actually there was difference ofopinion between PW4 and the first accused, since PW4 also joinedher brother in signing the sale agreements, It did not mean that https://hcservices.ecourts.gov.in/hcservices/ PW4 was not only in enimical term with the first accused, but therewas also strained relationship between them. A comment was made bythe learned counsel that PW4 did not visit her brother's house forfifteen days, though she did not get a call from him. It is truethat from the evidence it is clear that she used to get a phonecall. She categorically said that she visited her house lastly on12.5.2005 and since he did not make any phone call, there arosenecessity for her to visit the deceased brother's house on31.5.2005 because of which she came on 31.5.2005. when she came andquestioned the first accused, she made confessional statement tothe first accused. Before accepting any extra judicial confession,the Court must apply two tests. First, to whom and under whatcircumstances extra judicial confession was made and secondlywhether the evidence of person to whom extra judicial confessionmade, inspires confidence of the Court. In the instant case, extrajudicial confession was made by A1 to PW4, her sister-in-,law thattoo, at the first instance after so many queries made. Secondly theevidence of PW4 would clearly indicate that it inspires confidenceof the trial court as well as this Court and the trial courtaccepted the evidence rightly too. Under such circumstances, theCourt is of the considered opinion that the prosecution had broughthome the guilt of the first accused and there was sufficient motivefor her to do the crime. The deceased was a drunkard and that heused to execute the sale agreements in favour of third partieswhich are deteimental and prejudicial to the interest of thefamily. The evidence available could not only proved the motive,but also by placing sufficient circumstance proved that it was thefirst accused who has committed the crime of murder of his husband.8.In so far as A2 is concerned, the Court noticed thatthere is nothing worth mentioning to connect him with the crime.Therefore, he has to be acquitted of the charges. 9. In so far as A1 is concerned the prosecution hasproved that it was she who caused the death of her husband byscreening the evidence and hence the trial Court is perfectlycorrect in giving a finding that the first accused is guilty of theoffence punishable under Section 302 and 201 IPC and awardedpunishment as referred to above. Hence, the Court is unable to seeanything to disturb the judgment of the trial Court factually orlegally.Hence,in sofaras A1 is concerned.The appeal fails and thesame is dismissed . It is reported that the appellant is on bailand hence the learned trial Judge shall take steps to secure herpresence and commit her to prison to undergo the remaining periodof sentence. 10. In so far as A2 is concerned, the appeal is allowedand the he is acquitted of the charges. .Accordingly, the judgmentof conviction and sentence imposed on the second appellant by thetrial court is set aside. The bail bond, if any, executed by himshall stand terminated and the fine amount, if any paid by him isordered to be refunded to him. Accordingly, this criminal appeal isallowed. https://hcservices.ecourts.gov.in/hcservices/

11.In the result, the criminal appeal is dismissed inrespect of first accused and the same is allowed in respect ofsecond accused. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The First Additional District Sessions Judge, Erode2.Do Through The Principal Sessions Judge, Erode.3.The District Munsif cum Judicial Magistate, Perundurai.4.The Chief Judicial Magistate, Erode.5.The District Collector, Erode.6.The Director General of Police, Mylapore, Madras 104.7.The Superintendent, Central Prison, Vellore.8.The Superintendent, Central Prison, Coimbatore.9.The Inspector of Police, Thingalur Police Station, Erode District10.The Additional Public Prosecutor, High Court, Madras.11.The Section Officer, Criminal Section, High Court, Madras.+ 1 cc to Mr. N. Manokaran, Advocate SR No.26000KS(CO)SR/17.7.2009 CRL.A.NO.1022 OF 2007