Chinna Mathurappa v. State represented by The Inspector of Police Thalli police Station Krishnagiri District.(Crime No.93 of 2000)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 13.04.2009CORAMTHE HONOURABLE MR.JUSTICE C. NAGAPPANANDTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCriminal Appeal No.208 of 2008Chinna Mathurappa..Appellant/AccusedVersusState represented byThe Inspector of PoliceThalli police StationKrishnagiri District.(Crime No.93 of 2000) ..Respondent/ComplainantCriminal Appeal filed U/sec.374(2) of Crl.P.C. against theconviction and sentence made in S.C.No.244 of 2003, on the file ofthe learned Principal Sessions Judge, Dharmapuri at Krishnagiri,dated 21.11.2006.For Appellant: Mr.V.Murugesan for Mr.C.AnbarasuFor Respondent: Mr.V.R.Balasubramaniam Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by T. SUDANTHIRAM, J.)The appellant herein who is the sole accused in S.C.No.244 of2003, on the file of the Principal Sessions Judge, Krishnagiri,stands convicted for offences under Sections 302 and 201 IPC andsentenced to undergo life imprisonment and a to pay a fine ofRs.2000/- in default to undergo two years rigorous imprisonment forthe offence under Section 302 IPC and sentenced to two years rigorousimprisonment and to pay a fine of Rs.1000/- in default to undergorigorous imprisonment for six months for the offence under Section201 IPC. Aggrieved by the said conviction and sentence, theappellant had preferred this appeal.2. The case of the prosecution in brief is as follows: https://hcservices.ecourts.gov.in/hcservices/ The deceased Byramma is the wife of the accused. P.W.7 is theirdaughter. P.W.1 is the elder sister of the deceased and P.W.2 istheir brother. P.Ws.1 and 2 and the deceased belong toKonmakkanapalli village. About 12 years prior to the occurrence,the deceased married the accused who is the resident of MallibaiThotty village. P.W.1 had already married the brother of the accusedand they were living in Mallibai Thotty and the house of P.W.1 wasnext to the accused. Due to wedlock, the deceased gave birth to amale and a female child. As the accused ill-treated the deceased,she had gone to her mother's place. The accused had illicitintimacy with one lady by name Mallesamma. Again the deceased wassent back to her matrimonial home. As she conceived, she came toher parent's house and she delivered a male child. While thedeceased was living with her husband she was driven to her parents'house. As the children had grown up, she went to Mallibai Thottyalong with the father-in-law of P.W.1, one Murugesan and oneChengappan demanded a share in the properties of the accused. Theaccused had refused to give the share, instead he said that he isprepared to live with the deceased. As such, the deceased stay inher matrimonial home with children and started living. Then one dayin the early morning hours, the accused wanted to take the deceasedalong with him for collecting tamarind. At that time, there was aquarrel between both of them. P.W.7 daughter of the deceased beingawakened questioned that as to why they where going. On hearing thenoise, P.W.1 who was lying on the pial of the house came out andquestioned the accused and the deceased as to where they were going.The accused had gone with the deceased and thereafter at about9.00a.m., the accused alone returned home with a knife. P.W.1enquired the accused about the deceased for which he replied that hedid not know about her. As P.W.7 enquired her father, he hadinformed that the deceased had gone to her mother's place and shewould return within two or three days. After five days, as P.W.1again enquired the accused, the accused told her that he hadcommitted the murder of his wife at Munikudikal and he alsothreatened her not to disclose this fact to anyone. Thereafter,P.W.1 informed about this to her brother Muniappan, her maternaluncle. Then P.W.2 and others went in search of the body of thedeceased found lying in the gap between the rocks at the depth of 15feet at Munikudukal. On seeing the body, they could identify fromthe bangles, metti and clothes as that of deceased Byramma. P.W.1'sbrothers went to the police station and gave a complaint.3. P.W.9, Sub Inspector of Police of Thalli Police Stationreceived a complaint Ex.P.10 from Muniappan and registered the casein Crime No.93 of 2000 for offence under Section 302 and 201 IPC andprepared a First Information Report Ex.P.9 and he also sent the copyof FIR to the higher officials and to the Court.4. PW.10, Inspector of Police on receiving the copy of the FIR https://hcservices.ecourts.gov.in/hcservices/ went to the seen of occurrence and prepared the observation mahazarEx.P.1, in the presence of P.W.4 and another and also prepared arough sketch Ex.P.11. He held inquest from 3.30p.m., to 4.30p.m.,and examined the witnesses and prepared the inquest report Ex.P.12.He recovered a saree M.O.1 and a jacket M.O.4 under Ex.P.2 mahazar.He also gave a requisition for conducting the post mortem. 5. PW.8 , Dr. Pichai Thirumalai on receiving the body at6.30a.m., held autopsy at 11.30a.m., and he noticed the followinginjuries:"Appearances found at the post-mortem of a highlydecomposed female body lies on its back with all the fourlimbs extended. No facial demarcation seen with absence ofhair in the scalp. Tongue absent. Facial bone exposed.Moving Maggots present all over the body. Skin absent overthe abdomen - back and front pelvic region and upper partof the both thighs. Bones of the both upper arms exposed.No internal organs present. Brain matter absent oozed outthrough orbit.External Injury:Injury on (n.c.) seen over the left side of the neckand sub mandibular region with absence of muscles and Neurovascular bundle over the neck with exposing the cervicalvertebra. Skin of the area preserved. Hyoid bone absent.Vertebral column loosened dismantled. Skin with cervicalbone (6 Nos.) and skin over the left side of the neckpreserved."The Doctor opined that the deceased would appear to have died ofinjury to head and neck 15 days prior to post mortem examination. Hepreserved the skin over the left side of the neck. The bone casereport is Ex.P.8., and the opinion given in that is "Contusion(Antemortem) present on left temporo occipital region of scalp.Antemortem fracture of hyoid bone present. Antemortem contusion ofneck tissues present."6. On 29.02.2000 at 3.00p.m., P.W.10 arrested the accused atSoolakonda in front of the house of Karunanithi and also recordedhis confession in the presence of P.Ws.5 and 6. Ex.P.13 is theadmissible portion. In pursuance of the confession, the accused wastaken to his house and from his house he produced M.O.5 billhookwhich was seized under Ex.P.3 mahazar in the presence of the samewitnesses. Post mortem constable produced M.Os.2 and 3 Two pair ofmetti and broken bangles which were recovered from the body of thedeceased and they were seized under Form-95.7. As P.W.10 was transferred, P.W.11 Inspector of Police tookup further investigation and he recorded the statement of DoctorP.W.8 and after completing investigation, he laid the final report on https://hcservices.ecourts.gov.in/hcservices/

27.08.2000. 8. In order to establish its case, the prosecution has examine11 witnesses, marked 15 exhibits and produced 5 material objects.When the accused was questioned under Section 313 Cr.P.C., he haddenied the complicity. No witness was examined on the side of thedefence.9. Mr.V.Murugesan, learned counsel for the appellant submittedthat there is no eye witness to the occurrence and the circumstantialevidence let in by the prosecution are unbelievable and unacceptable.Only after tracing the body of the deceased, the accused had beenfalsely implicated with cooked up materials. The learned counselfurther submitted that the evidence of P.W.1 is highly artificial andP.W.7 who was aged only eight years at the time of occurrence is atutored witness.10. Per contra, Mr.V.R.Balasubramaniam, learned AdditionalPublic Prosecutor submitted that there is a motive for the accused tocommit the murder of the deceased, since she wanted a share in theproperty of the accused. The evidence of P.W.1 and P.W.7 are to theextent that the accused and the deceased were seen together going tocollect the tamarind and the accused alone returned. The body of thedeceased also was traced on search only after the accused himself hadtold P.W.1 that he had murdered the deceased at Munikudical whichamounts to extra judicial confession. M.O.5 billhook weapon also hasbeen recovered on the information furnished by the accused. Thelearned Additional Public Prosecutor submits that the cumulativeeffect of the circumstances let in by the prosecution lead to theguilt of the accused. 11. This Court considered the submission made by both sides andperused the records. On 27.02.2000, the body of the deceased wasfound by Muniappan who is the brother of the deceased, P.W.2 andanother brother of the deceased and others. The brother of P.W.2 andhis brother Muniappan went to the police station and gave Ex.P.10.The body was also identified as that of the deceased Byramma and theclothes and the metti of the deceased also have been identified bythe witnesses.12. The post mortem Doctor P.W.8 also has opined that thedeceased had died of injury to the head and neck and as per Ex.P.8bone case report, contusion was present on left temporo occipitalregion of scalp. Ante mortem contusion of neck tissues present. Asper the evidence of Post mortem, it is established that the deceasedhad died due to homicidal violence.13. The point for consideration is that whether thecircumstances available in this case prove that the accused is https://hcservices.ecourts.gov.in/hcservices/ responsible for the homicidal death of the deceased. Theprosecution has relied on the following circumstances:(i) The extra judicial confession given by the accused to P.W.1.(ii) The evidence of P.Ws.1 and 7 that the accused going awaywith his wife/deceased and returning back to the house alone.(iii) The motive for the occurrence that the deceased haddemanded the share in the property of the accused.(iv) The recovery of M.O.5 bill hook in pursuance of theconfession given by the accused.14. According to P.Ws.1 and 7, the deceased was staying in thehouse of the accused at the relevant time and on the particular day,early morning the accused took the deceased with him and at about9.00a.m., the accused alone returned. Though P.Ws.1 and 7 hadenquired about the deceased, according to P.W.1 the accused informedher that he did not know about the deceased and according to P.W.7,the accused informed her that the deceased had gone to her mother'splace. This part of the evidence of P.Ws.1 and 7 is contradictory toeach other. Further, the evidence of P.W.1 is that again he enquiredthe accused after five days, and at that time, she was informed bythe accused that the deceased had been murdered by him. It is alsothe evidence of P.W.1 that she had not informed this to others, sinceshe was threatened by the accused. This part of the evidence ofP.W.1 does not inspire confidence of this Court. Further it is theevidence that subsequently she had informed her brothers. Even theneither P.W.2, her brother or another brother Muniappan had not givenany complaint to the police immediately, but they had gone in searchof the body of the deceased on their own. Ultimately the complainthas been given only after the body of the deceased was seen. P.W.1has also not given particulars about the date on which she had seenthe accused and the deceased and also with regard to the other datesrelating to the occurrence. P.W.7, the daughter of the accused wasonly aged eight years at the time of occurrence and she admits thatshe did not know the day and dates on which she had lastly seen herfather and mother together. According to her, within for or fivedays from that date, the police had enquired her. This part of theevidence does not coincide with the prosecution case. The evidenceof P.Ws.1 and 7 remains unacceptable by this Court. The mererecovery of billhook M.O.5 does not help the prosecution case in anymanner. Even according to the prosecution, the billhook wasavailable only in the house of the accused. It is not the case ofthe prosecution that the accused was absconding after the occurrence.On the other hand, he was available in his house even according tothe evidence of P.Ws. 1 and 7. The motive shown by the prosecutioncase is that the deceased had demanded a share in the property of theaccused, but the accused refused to give the property and thedeceased had stayed with the accused in the house. According to thedefence version, the deceased had not stayed with the accused and https://hcservices.ecourts.gov.in/hcservices/ she was having illicit intimacy with the another person. Admittedly,the deceased was living separately in her parent's house for severalyears. The motive alone cannot be a ground for conviction. We heldthat the circumstances let in by the prosecution are not establishedand they do not negative the presumption of the innocence of theaccused.15. In the result, as the prosecution has not proved its casebeyond reasonable doubt, the Criminal appeal is allowed and theconviction and sentence imposed on the appellant/accused ChinnaMathurappa, in Session Case No.244 of 2003, on the file of thePrincipal Sessions Judge, Krishnagiri, are set aside and theappellant/accused is acquitted of all the charges and the fine amountpaid, if any, has to be refunded to him. The appellant/accused isdirected to be released forthwith, if his custody is not required inany other case. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarksrTo1. The Principal Sessions Judge,Dharmapuri at Krishnagiri.2.The Judicial Magistrate,Denkanikottai3.-do- thro' The Chief Judicial Magistrate,Dharmapuri at Krishnagiri.4.The Inspector of PoliceThalli Police StationKrishnagiri District.5.The SuperintendentCentral PrisonVellore-2 https://hcservices.ecourts.gov.in/hcservices/

6.The Superintendent,Central Prison, Salem.7.The District Collector,Krishnagiri.8.The Director General of Police,Chennai.9.The Public ProsecutorHigh Court, Madras 600104.10.The Section OfficerCriminal Section, High Court, Madras 104.+1cc to Mr.G.Anbarasu, Advocate Sr 14053GV(CO)km/30.4. Criminal Appeal No.208 of 2008