High Court · 2009

BAIL SLIPCRIMINAL APPEAL NOs.384 and 371 OF 2008The Appellants viz., Amudha/I accused and Seenu @ SrinivasaGounder (II accused) in Crl.A.384 and 371/2008 respectively weredirected to be released on bail in and by the order of this Courtdated 30.09.2008 and 27.06.2008 and made in M.P.Nos.2 and 1 of 2008in Crl.A.Nos.384 and 371/2008 respectively.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.06.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NOs.384 and 371 OF 2008Amudha ..Appellant(Accused No.1) in Crl.A.384/08Seenu @ Srinivasa Giounder ..Appellant (Accused No.2) in Crl.A.371/08Vs.State represented byInspector of Police,Bramedesam Police Station,Bramadesam-Tindivanam TalukVillupuram District(Crime No.21 of 2007) ..Respondent in both appeals These criminal appeals have been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additional DistrictSessions Judge, Fast Track Court No.1,Tindivanam, Villupuram Dsitrictmade in S.C.No.23 of 2008, dated 24.4.2008. For Appellant in Crl.A.No.384/08: Mr.R.C.Paul Kanagaraj For Appellant in Crl.A.371/08 : Mr.D.Gubendragunabalan https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr.N.R.Elango, APP in both appeals COMMON JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional District andSessions Fast Track Court I,Tindivanam, Villupuram District made inS.C.No.23 of 2008, dated 24.4.2008 whereby the firstaccused/appellant stood charged along with A-2 under Sections 302IPC, tried and both of them found guilty under Section 302 IPC andawarded life imprisonment and to pay a fine of Rs.1000/-, in defaultto undergo 3 months R.I and also under Section 201 IPC to undergoRigorous imprisonment for 5 years and to pay a fine of Rs.500/- indefault to undergo Rigorous imprisonment for 3 months and thesentences are ordered to run concurrently. 2.The short facts necessary for the disposal of theseappeals can be stated as follows: a)P.W.1 is the elder brother of the deceased Perumal. A1 isthe wife of Perumal. A1 had developed illicit intimacy with A2 andthe family of PW1 and Perumal were living in the same place. But,they were living separately. On 20.7.2006 at about 8 a.m., A1accompanied her husband Perumal and went to the field, but they didnot return home on that day. On the next day morning, when she camealone, the mother of the deceased questioned about her son Perumaland she gave an evasive answer. Thereafter, all the family memberssearched for him. They could not trace him. On 9.8.2006, P.W.1proceeded to the respondent police station and gave Ex.P.1, thecomplaint to P.W.13, the Inspector of Police. On the strength ofEx.P.1, a case was registered for 'man missing' in Crime No.279/2006.Ex.P.12 is the F.I.R. Thereafter on the very same day, PW1 wasinformed that the dead body was found in the nearby field. He wentthere and found the dead body and immediately informed to the police.PW1 has given another complaint which is marked as Ex.P.13. Then thecase was altered into one under Section 302 IPC for "suspiciousdeath". Immediately, he proceeded to the spot. Tahsildar was alsoinformed and exhumation was done in the presence of Tahsildar. TheTahsildar conducted inquest on the dead body and also given theinquest report which is marked as Ex.P.3. b.Pursuant to the requisition made, PW12 conductedpostmortem on the dead body of Perumal and has given his opinion thatthe dead body was found at the highly decomposed stage and the doctorcould not fix the cause of death and to that effect he gave a postmortem certificate which is marked as Ex.P.11. https://hcservices.ecourts.gov.in/hcservices/ c. P.W.15 took up the investigation and he went to theplace of occurrence and made an inspection in the presence of thewitnesses. He has prepared observation Mahazar and rough sketchEx.P.15, is the rough sketch. He has sent requisition to the JudicialMagistrate II, Tindivanam for sending the dead body for chemicalexamination which is marked as Ex.P.16 and who in turn sent a letterto the Forensic Science Department which is marked as Ex.P.17. Arequisition was also made to the Judicial magistrate concerned forsending the Hyoid bone for Hyoid Bone examination which is marked asEx.P.18 who in turn sent a letter to the Professor, Law and MedicalDepartment, Chengalpet which is marked as Ex.P.19 and Ex.P.20 is therequisition from PW15 to Judicial Magistrate for sending the skullfor super impossion examination. e)Pending investigation, A1 appeared before the respondentpolice and she has come forward to give confessional statement, whichwas recorded in the presence of the witnesses. The admissible portionof confessional statement of A-1 was marked as Ex.P.8. Pursuant tothe confessional statement, A-1 produced M.O.1 Crow bar, which wasrecovered under Ex.P.9, the mahazar. The first accused was sent forjudicial remand. The photograph of deceased Perumal along with thefirst accused was also produced by the first accused. An opinion wasgiven by P.W.8, the Assistant Director, Anthropology Division,Forensic Sciences Department and the Super impossion report is markedas Ex.P.5. The dead body was subjected to chemical examinatiion.Since the body was at the decomposed stage, the report cannot beobtained. P.W.16, the Inspector of Police, took up furtherinvestigation and on completion of the investigation, he filed thefinal 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 16 witnessesand also relied on 23 exhibits and 2 M.Os. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses. The accused flatly deniedthe same as false. No defence witness was examined. The trial court,after hearing the arguments advanced and scrutinizing the materialsavailable, took the view that the prosecution has proved the casebeyond reasonable doubt both the accused and was found them guiltyand awarded punishment as referred to above. Hence these appeals havearisen at the instance of appellants herein. 4.Advancing arguments on behalf of the appellant inCrl.A.No.384 of 2008, the learned counsel would submit that in theinstant case, the gist of the case of the prosecution was that sinceA1 had illicit intimacy with A2 and there had been quarrels betweenthe spouses, they decided that they would do away with the saidPerumal, the husband of the first accused. On 20.7.2006, the first https://hcservices.ecourts.gov.in/hcservices/ accused took the husband to the field and thereafter she alonereturned on the next day morning and she has committed murder withthe help of A2 and the body was buried. Thus, both the accused stoodcharged before the trial Court for the act of crime of murder andalso for screening of the evidence. Before the Trial Court, theprosecution had no direct evidence to offer. But it rested upon twocircumstantial evidence. First one is the confessional statementalleged to have been given by A1 to the concerned police on15.8.2006, equally by A2 to the concerned police on 31.8.2006. Exceptthese two confessional statements that are alleged to have been givenby A1 and A2 to the Police officials, no other evidence wasavailable before the Trial Court. According to the prosecution, A1along with the Perumal went to the filed at about 8 a.m. on20.7.2006, but both of them were not returned on the night,but shealone came back in the next day morning and when she was asked by themother of the deceased, she did not give any proper answer. But, theanswer was evasive. Though such an evasive answer was given on21.7.2006, no steps were taken or no complaint was given to thepolice or to the Village Administrative Officer. But the firstcomplaint was given by PW1 only on 9.8.2006 which is marked asEx.P.1. A perusal of Ex.P.1 would clearly indicate that beforefifteen days, due to anger, the deceased went away from the house andnowhere it is stated that both the deceased and A1 went together andhence it could be seen that on the very day at about 2.45 hours, PW1has given another complaint which is marked as Ex.P.13 wherein it isstated that he found the dead body and thus it would be quite clearthat the two complaints were made on the very same day with differentversion, but nowhere it is stated that A1 and the deceased wenttogether from the house on 20.7.2006 and thus the last seen theoryhas lost its importance. Added further the learned counsel that itis the case of the prosecution that the first accused voluntarilyappeared before the police on 15.8.2006 and it is pertinent to notethat even as per Ex.P.1 complaint, she was very much available justfew days prior to Ex.P.1 and further it could be seen that the caseof the prosecution that on 15.8.2006, A1 suddenly appeared before thePolice Station and gave such a confessional statement would not beaccepted since without anybody, a woman cannot be expected to appearbefore the Police Station to give such a confessional statement.Thus, it would be quite clear that actually it is a created evidence.Added further the learned counsel that A2 has been arrested onlyafter he was identified by A1 and the confessional statement of A1has been used against A2. Further in a case like this, the confessionstatement of one accused cannot be used as against the co-accused andif at all it is to be accepted, the Court must see whether anysupporting evidence is available. But, in the instance case, nosupporting evidence is available. There are cases rested upon theextra judicial confession alleged to have been given, except this, inthe instant case, no evidence is available at all. Mere recovery ofCrow bar and spade cannot by itself will speak about the convictionof the accused in the crime. Under such circumstances, the https://hcservices.ecourts.gov.in/hcservices/ prosecution had no evidence to offer and the lower court had taken anerroneous view and the judgment has got to be set aside. 5.The court heard the learned Additional Public Prosecutor onthe above contentions and has paid its anxious consideration on thesubmissions made. 6.It is not in controversy that Perumal, husband of A1 wasexhumed in the presence of Tahsildars and other officials on 9.8.2006After the inquest was made by the Investigating Officer, the deadbody was subjected to post-mortem by P.W.12, the Doctor, has givenhis categorical opinion that the death could not be fixed, since thebody was found at the decomposed stage. The fact that the deceaseddied out of homicidal violence was never disputed by the appellantsbefore the trial court and hence it has got to be recorded so. ThePhotograph of Perumal was recovered from A1. Skull was sent for superimpossion examination and the same was also conducted. It ispertinent to point that the identity of the deceased Perumal wasnever questioned by the accused. The case of the prosecution thatPerumal, husband of A1 made to Homicidal death and hence it can berecorded so. 7.In order to substantiate the charges levelled against theappellant/accused 1 and 2 that they have committed the murder ofPerumal and also for screening the evidence, the prosecution had nodirect evidence and it rested only on circumstantial evidence. In acase like this, when the prosecution has come forward to rest thecase on the circumstantial evidence, except the accused 1 & 2, no onecould have been committed the offence. In the instant case, in so faras the charges levelled against A1 and A2 are concerned, the entirecase rests only on extra judicial confession alleged to have beengiven by A1 and A2. Following the investigation, crow bar has beenrecovered at the instance of A1 and spade has been recovered at theinstance of A2. The occurrence, according to the prosecution wastaken between 20.7.2006 and 21.7.2006.The last seen theory was spokento by PW1 that A1 took her husband to the field on 8 a.m. on20.7.2006, but he did not return on the next day, even then, nocomplaint was forthcoming from PW1 or anybody else from the family ofthe deceased and Ex.P.1 was the earlier complaint given on 9.8.2006on the morning.8. In Ex.P.1 nowhere it is stated that A1 accompanied herhusband when he left the house on 20.7.2006. On the contrary he hascategorically stated that due to anger, the deceased left the houseand thus the case of the prosecution that at about 8 a.m.,A1accompanied her husband, cannot be believed. Further,PW1 has givenanother complaint at about 3 a.m. on the same day which is marked asEx.P.13.A perusal of Ex.P.13 would clearly indicate that he saw thedead body of his brother and it was buried on the very same day andat 2.45 p.m. another complaint has been given and hence two https://hcservices.ecourts.gov.in/hcservices/ complaints were given. One for 'man missing' and second one for"suspicious death", after the dead body was found. Thus, it wouldcast doubt whether both the complaints would have brought intoexistence after the dead body was found. Further added the learnedcounsel that in the instant case, the prosecution rested its case ontwo confessional statements, one at the instance of A1 and another atthe instance of A2. The investigator would claim that A1 suddenlyappeared before the Police Officials and gave a confessionalstatement. It is pertinent to point out that the case of theprosecution is that the occurrence had taken place on 5.8.2006 fornearly about 20 days later. It is a matter of surprise to note thatA1 has suddenly appeared after 20 days before the Investigator togive such a confessional statement and equally A2 appeared beforethe same police officer on 31.8.2006 after he was identified by A1and all would clearly indicate that both the confessional statementswould have been prepared to suit the convenience of the prosecutioncase. Needless to say that mere recovery of the weapons i.e. Crow barand spade in this case would not be sufficent to convict the accused.The Court is able to see that the evidence adduced by the prosecutionwas so feeble and weakest evidence. In the instant case, to sustainthe conviction on such evidence would be highly unsafe to hold thatthe accused are guilty under the charges levelled against them andthe trial Court has taken an erroneous view. Hence, without anyhesitation whatsoever, this Court has to necessarily set aside thejudgment of the court below. 8. In the result, the criminal appeal is allowedsetting aside the judgment of conviction and sentence by the courtbelow. The appellants/accused are acquitted of the charge underSections 302 and 201 of I.P.C. Bail bonds, if any, executed by theappellants/accused 1 and 2 shall stand cancelled The fine amount, if,paid, shall be refunded to them.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarVJYTo1. The Additional District -cum- Sessions Judge, Fast Track Court I, Tindivanam.2. -do- Through The Principal District & Sessions Judge, Villupuram.3. The Judicial Magistrate No.2, Tindivanam.4. -do- Through The Chief Judicial Magistrate, Villupuram. https://hcservices.ecourts.gov.in/hcservices/

5. The Superintendent, Special Prison for Women, Vellore.6. The Superintendent, Central Prison, Cuddalore.7. The Inspector of Police, Bramadesam Police Station Bramedesam-Tindivanam Taluk, Villupuram District.8. The Public Prosecutor, High Court, Madras.+ 1 c.c. to Mr. R.C. Paul Kanagaraj, Advocate. S.R.No.25036. CRL.A.NO.384 and 371 OF 2008KG (CO)GSK 07.07.2009.