Muthuselvam v. The State Rep. By its The Inspector of Police Thiruthuraipoondi Police Station Thiruvarur District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-12-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALILNGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.666 of 20091.Muthuselvam2.Munusamy.. Appellants/Accused 1, 2vsThe State Rep. By itsThe Inspector of PoliceThiruthuraipoondi Police StationThiruvarur District(Crime No.363 of 2008).. Respondent/ComplainantCriminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Sessions Court,Thiruvarur, dated 28.8.2009 in S.C.No.47 of 2008.For Appellants: Mr.N.Doraisamy for Mr.T.P.Senthil KumarFor Respondent: Mr.Babu Muthu Meeran Additional Public ProsecutorJUDGMENT(Judgment of the Court was made by M.CHOCKALILNGAM, J.)Challenge is made to a judgment of the Sessions Division,Thiruvarur, made in S.C.No.47 of 2008 whereby both the appellantsranked as A-1 and A-2 respectively, stood charged, tried and foundguilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 & A-2120(B) IPCNot guiltyAcquittedA-1 & A-2450 IPCNot guiltyAcquittedA-1302 IPCGuilty underSec.302 readwith 34 IPCLifeimprisonmentalong with afine ofRs.15000/- anddefault sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-2302 r/w 34 IPCGuiltyLifeimprisonmentalong with afine ofRs.15000/- anddefault sentence2.The short facts necessary for the disposal of this appeal canbe stated as follows:(a) The deceased one Lakshmi was living with her husbandPonnaiyan and also the son P.W.4. He was a native of Karuvelampatti,Madurai District. 30 years before, he came with his wife Lakshmi toThiruthuraipoondi and was living there where P.W.4 was born. Thesaid Ponnaiyan had two brothers by names Soundarapandi andKaruthapandi. They had a family property which remained undivided.Taking advantage of the absence of Ponnaiyan, both the brotherschanged all the revenue records in their favour and took theproperty. A few years prior to the death of Ponnaiyan, they went tothe native place and were demanding their share in the property, towhich course the brothers were not amenable. Even after the death ofPonnaiyan, for a few years Lakshmi was demanding her share in theproperty which originally belonged to her husband Ponnaiyan, and theywere not prepared, and she was also found to be a hurdle. A-1 is theson of Soundarapandi and A-2 is his brother-in-law. (b) On the previous night that was on 1.6.2008, both the accusedcame to the house of Lakshmi as if they came as guests. During therelevant time, P.W.4 was employed at Tiruppur. Taking advantage ofthe same, they stayed over there, and at about 4.15 A.M. on 2.6.2008,when Lakshmi was sleeping, A-1 caused suffocation by closing hermouth with a cloth and also cut her neck with a knife, and A-2 alsojoined with him in attacking her. They caused fatal injuries, and shesuccumbed to the same. (c) P.Ws.2 and 3 are husband and wife respectively, who areactually residing behind the house of Lakshmi. On hearing thedistressing cry, both of them woke up, came out of the house andfound A-1 coming out of the house of Lakshmi. They had got a torchlight in hand and questioned him. He replied that he was a closerelative of the deceased. After a period of 10 minutes, though A-1went to the backyard, he did not return. Hence they entertaineddoubt, and immediately, they got inside the house of Lakshmi whenthey found A-2 coming out of the house. They found Lakshmi in a poolof blood. An information was given to P.W.1, the VillageAdministrative Officer (VAO), at about 8.00 A.M. on 2.6.2008, by hismenial. (d) P.W.1, the VAO, went to the place of occurrence, found thedead body, went to the respondent police station and gave Ex.P1, thereport, on the strength of which P.W.11, the Sub Inspector of Police,who was on duty, at about 9.00 A.M. registered a case in Crime No.363of 2008 under Sec.302 of IPC. The printed FIR, Ex.P11, wasdespatched to the Court. (e) The investigation was taken up by P.W.12, the Inspector ofPolice of the Circle. He went to the place of occurrence, made aninspection and prepared an observation mahazar, Ex.P7, and also arough sketch, Ex.P12. He also recovered bloodstained earth and sample https://hcservices.ecourts.gov.in/hcservices/ earth under a cover of mahazar. Then, in the presence of witnessesand panchayatdars, he conducted inquest on the dead body and preparedEx.P13, the inquest report. The dead body was sent to the GovernmentHospital along with a requisition for conduct of autopsy.(f) P.W.8, the Assistant Surgeon, attached to the GovernmentHospital, Thiruthuraipoondi, on receipt of the said requisition,conducted postmortem on the dead body of Lakshmi and has issued apostmortem certificate, Ex.P9, with his opinion that the deceasedwould appear to have died of injury to vital organs – trachea,cartoid vessel leading to asphyxia and haemorrhagic shock. (g) Pending investigation, both the accused were arrested on14.6.2008. They came forward to give confessional statementsvoluntarily. The same were recorded by the Investigator in thepresence of witnesses. The admissible part of the confessionalstatement of A-1 is Ex.P2, and that of A-2 is Ex.P3. Pursuant to thesame, they produced M.O.1, knife, M.O.2, shirt, M.O.3, knife, andM.O.4, shirt, respectively which were recovered under mahazars. Theywere sent for judicial remand. (h) All the material objects recovered from the place ofoccurrence and from the dead body and also both the weapons of crimenamely M.Os.1 and 3 along with other material objects recovered fromthe accused were subjected to chemical analysis which brought forthtwo reports namely Ex.P14 series, the chemical analyst's report andthe serologist's report. P.W.13, the Inspector of Police, took upfurther investigation and on completion of the same, filed the finalreport.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 13 witnesses and also relied on 14 exhibits and11 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses, which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedon either side and took the view that the prosecution has proved thecase beyond reasonable doubt and hence found them guilty underSec.302 read with 34 IPC and awarded life imprisonment. Hence thisappeal at the instance of the appellants.4.Advancing arguments on behalf of the appellants, the learnedCounsel Mr.N.Doraisamy would submit that the prosecution hasmiserably failed to prove its case; that in the instant case, A-1 andA-2, according to the prosecution, came to the house of Lakshmi inorder to do away pretending that they were guests, on the night of1.6.2008; that the motive which was attributed to the accused by theprosecution, was that they had a property dispute, and both thebrothers of Ponnaiyan had grabbed the property of Ponnaiyan, andsince Lakshmi was aggrieved, she went to the native place often andwas quarrelling with them as a result of which the son ofSoundarapandi who was the brother of Ponnaiyan, decided to do awaywith her, and pursuant to the conspiracy, A-1 along with hisbrother-in-law A-2 came to the place of Lakshmi namelyThiruthuraipoondi, attacked her and caused her death during the earlyhours namely 4.15 A.M. on the day of occurrence; that the prosecutionhas miserably failed to prove the motive part; that not even one https://hcservices.ecourts.gov.in/hcservices/ piece of evidence was available to the prosecution to support thesame; that as far as the occurrence is concerned, no direct evidenceis brought forth by the prosecution, and there was nobody to speakabout the fact at the least that these accused were staying in thehouse of Lakshmi on the relevant day at a particular night; thatapart from that, as far as P.Ws.2 and 3 are concerned, they are utterstrangers to the accused; that all of them have deposed that they sawthe accused one after another immediately after the occurrence; but,at the same time, it is to be noted that there was actually utterdarkness; that P.Ws.2 and 3 would say that they had got a torchlight, and when they intercepted A-1 he gave a reply that he was aclose relative of Lakshmi; but, it was also for a fraction of second,and thereafter they found A-2 actually running, and under suchcircumstances, they could not have seen the appellants at least for afew minutes; that in such a situation, it was a case whereidentification parade should have been conducted; but, theinvestigating agency have not conducted so, and under suchcircumstances, the evidence of P.Ws.2 and 3 cannot be relied upon. 5.Added further the learned Counsel that it is true that theprosecution was successful enough in proving that she died out ofhomicidal violence, but that by itself would not suffice; that as faras the alleged confession and recovery of the material objects areconcerned, they have brought forth only chemical analyst's report andserologist's report; that even if it is to be accepted, on the faceof it, a conviction cannot be sustained; that under thecircumstances, the prosecution has failed to place either direct orindirect or circumstantial evidence, and thus it has miserably failedto prove its case; but, the trial Court has taken an erroneous view,and hence the judgment of the trial Court has got to be set aside,and the appellants be acquitted.6.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 7.It is not in controversy that one Lakshmi, the mother ofP.W.4, was done to death in an incident that had taken place duringthe night hours of 1.6.2008. Following the complaint given by P.W.1,the VAO, to P.W.11, the Sub Inspector of Police, the case came to beregistered under Sec.302 IPC. Following the same, after thepreparation of the inquest report by P.W.12, the Investigator, thedead body was subjected to postmortem by P.W.8, the Doctor, who hasgiven a categorical opinion as a witness before the Court and alsothrough the contents of the postmortem certificate that she died outof injury to vital organs – trachea, cartoid vessel leading toasphyxia and haemorrhagic shock. As far as the cause of death wasconcerned, the appellants never questioned the same before the trialCourt, and there was no controversy. Thus the prosecution wassuccessful enough in proving that she died on account of homicidalviolence, and the trial Court was perfectly correct in recording so.8.In order to substantiate that due to the property dispute, theaccused/appellants hatched up a conspiracy, proceeded to her house,stayed over there and caused the death by stabbing, the prosecutionhad no direct evidence to offer, but it relied upon circumstantial https://hcservices.ecourts.gov.in/hcservices/ evidence. It is settled proposition of law that in a given case likethis where the prosecution rests its case on the circumstantialevidence, it must be able to place and prove necessary circumstancespointing to the guilt of the accused and also the hypothesis thatexcept the accused no one could have committed the offence. Thissettled proposition of law if applied to the case on hand, this Courtis afraid whether it can sustain the judgment of conviction made bythe trial Court. In the instant case, the occurrence has taken placeat about 4.15 A.M. on 2.6.2008, when Lakshmi was staying in herhouse. The case of the prosecution was that A-1 the son ofSoundarapandi, who was the brother of Ponnaiyan, the husband of thedeceased, following the conspiracy came over there along with hisbrother-in-law, A-2, and caused her death during the night hours of1.6.2008 due to property dispute. There is no direct orcircumstantial evidence. That apart, not even one piece of evidenceis available as rightly pointed out by the learned Counsel for theappellants, that both the accused were staying in the house ofLakshmi that night when the occurrence has taken place. 9.Apart from the above, P.Ws.2 and 3 are claimed to be theeyewitnesses who have actually seen both the accused at the place ofoccurrence immediately after the occurrence. But, in the case onhand, their evidence, in the considered opinion of the Court, cannotbe relied upon for more reasons than one. The occurrence has takenplace at about 4.15 A.M. P.Ws.2 and 3 would claim that they heardthe distressing cry, and then they woke up and immediately came out,and they found A-1 coming out of the house of Lakshmi, and when theyquestioned A-1, he replied that he was a close relative of Lakshmi,and so saying he went away, and thereafter though he went to thebackyard, he did not come back, and then, they entertained suspicionand got inside the house of Lakshmi, and at that time, they found A-2coming out, and there was no interception or questioning of A-2, andhe ran away, and thereafter, they found the dead body. Now, takinginto consideration the time of occurrence and the way in which theyhave intercepted A-1 and also the time duration within which theycould have seen both of them, they could not have certainly made adent in their memory. It is settled proposition of law thatidentification parade is not a must in every case. Theidentification parade is not a substantive piece of evidence, butonly a corroborative piece of evidence. In a given case if thewitnesses are able to identify the accused before the Court, it wouldsuffice; but, the Court must take into account whether they first sawthe accused immediately at or after the time of occurrence. TheCourt must immediately look into whether there was sufficient timeduration which would cause a dent in their memory. In the case onhand, from the evidence of P.Ws.2 and 3 that they saw A-1 and A-2immediately, it would be quite evident that the same could not havemade any dent in their memory. In such circumstances, theInvestigator should have requested for an identification parade, butnot done so. Hence, relying on the evidence of P.Ws.2 and 3 tosustain a conviction would be highly unsafe in the considered opinionof the Court. 10.Added further, as far as the recovery is concerned, it isalso highly doubtful. The occurrence has taken place on 1.6.2008,during night hours. The Investigator would claim that they were https://hcservices.ecourts.gov.in/hcservices/ arrested on 14.6.2008, at Thiruthuraipoondi. It is highly a matterof surprise to note that when both the accused belonged to MaduraiDistrict, there was no reason for them to come aroundThiruthuraipoondi and that too after the occurrence was over and alsoafter a period of 12 days. The evidence of the witnesses examinedfor that purpose did not inspire the confidence of the Court, and themere recovery of the material objects by itself would not suffice tosustain a conviction. 11.It is true that according to the scientific evidence, theblood group was tallying. But, that is not sufficient to sustain aconviction. So long as the prosecution is unable to make the evidenceof P.Ws.2 and 3 reliable and acceptable, the case of the prosecutioncannot be accepted. But, the trial Court has taken an erroneousview. Under the circumstances, this Court is of the consideredopinion that the judgment of the trial Court has got to be madeundone by upsetting the same, and the appellants are entitled foracquittal. 12.In the result, this criminal appeal is allowed setting asidethe judgment of the trial Court. The appellants are acquitted of thecharge levelled against them. They are directed to be set at libertyforthwith unless their presence is required in connection with anyother case. The fine amounts if any paid by them shall be refundedto them.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The Sessions Judge Thiruvarur.2.The Inspector of Police Thiruthuraipoondi Police Station Thiruvarur District (Crime No.363 of 2008)3.The Public Prosecutor High Court, Madras.4. The District Collector of Thiruvarur.5. The Director General of Police, Mylapore, Chennai - 4. https://hcservices.ecourts.gov.in/hcservices/

6. The Judicial Magistrate, Thiruthuraipoondi.7. -do- Through The Chief Judicial Magistrate, Thiruvarur District.8. The Superintendent, Central Prison, Trichy.1 cc To Mr.N.Doraisamy, Advocate, SR.71096.CRL.A.No.666 of 2009TM(CO)RVL 12.01.2010