Madras High Court
A.S.Ushadevi vs Venkatesh on 30 September, 2021
Crl.A.(MD).No.555 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :30.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Crl.A.(MD).No.555 of 2018
A.S.Ushadevi ... Appellant /defacto complainant
-vs-
1.Venkatesh
2.P.R.Balan @ Balasubramanian
3.Sundaragopala Iyer ... Respondents/
Accused 1 to 3
4.The Inspector of Police
State of Tamilnadu,
Theppakulam Police Station,
Madurai District. ...Respondent/complainant
1/22
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Crl.A.(MD).No.555 of 2018
PRAYER : Criminal Appeal is filed under Section 372 of Cr.P.C., to call for
records relating to the judgment passed in S.C.No.392/2010, dated
12.03.2012 on the file of the Additional Sessions Judge/Fast Track Court
No.1, Madurai and setaside the same and allow the appeal and convict the
respondents/accused 1 to 3 for the charges framed against them.
For Appellant : Mr.R.Ventakeshwaran
For R1 & R2 : Mr.A.K.Alagarsamy
For R3 : Died
For R4 : Mr.S.Ravi
Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
Challenging the order of acquittal, P.W.1-Ushadevi, is before this
Court with this appeal.
2. Totally there are three accused in this case. They stood charged for
the offence under Section 302 r/w 201 r/w 34 I.P.C. By judgement, dated
12.03.2012, the trial Court acquitted all the accused from the charges. Now,
challenging the order of acquittal, P.W.1 is before this Court.
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3. The case of the prosecution in brief as follows:
The deceased, in this case one K.S.Subramanian, is the son of A3. A1
& A2 are the sister's husband and son of the deceased. There was a dispute
between the parties in sharing a ancestral property and all the accused have
decided to murder the deceased in order to grab the property. On
05.06.2009, all the accused went to the house of the deceased and A1
pushed the deceased against the Wall, thereafter, strangulated him and
hanged him in the bed room as if he had committed suicide.
4. P.W.1 is the wife of the deceased. She was working as a teacher.
On the date of occurrence, she went to school and came back at 5.30 p.m.,
along with her eldest son P.W.1 and found the door was locked. They
forcefully opened the door and found the deceased hanging. Immediately,
she gave a complaint (Ex.P1) before P.W.15 the Sub-Inspector of Police
and he registered a case in Cr.No.799 of 2009 under Section 174 of Cr.P.C.
The printed FIR was marked as Ex.P8. Immediately, after registration of the
case, he along with one Anand, Head Constable, visited the scene of
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Crl.A.(MD).No.555 of 2018
occurrence and in the presence of witnesses P.W.8, Karthik, and one Raja,
prepared an Observation Mahazar (Ex.P2). He drawn the Rough Sketch
(Ex.P9) and he recovered the material objects M.Os.1 & 2 in the presence of
same witnesses. Thereafter, in the presence of Panchayatars he conducted an
inquest on the dead body and prepared Inquest Report (Ex.P10), then sent
the dead body to the Government Hospital for conducting postmortem
through P.W.14-Head Constable and recorded the statements of the
witnesses.
5. P.W.10- Dr.P.Natarajan, Professor, working in the Medical College
Hospital conducted autopsy on the dead body and issued Accident Register
(Ex.P4) and Postmortem Certificate (Ex.P5). He found following injuries on
the dead body:
“ Appearances found at the postmortem:
Moderately nourished body of a male, aged about 46
years. Finger and toe nails nlue.
The following antemortem injuries are noted on the
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body:
Transverse ligature mark completely encircling the neck
measuring 43cms x 2.0 cms.
The anatomical location of the ligature mark is as
follows:
- 07 cms below the right mastoid
- 07 cms below the left mastoid
- 07 cms below the centre of the chin.
On bloodless dissection of the neck:
The base of the ligature mark is contused with
extravasation of blood noted on the superficial and deeper
planes of the neck. The underlying neck structures like thyroid
cricoid cartilages, tracheal rings and hyoid bone are normal.
On dissection of scalp, skull & dura:
Contusion of scalp 8x4 cms noted on left paricto
temporal region. Left temporalis muscle is bruised. Diffused
subdural haemorrhage, subaachnoid heamorrhage noted over
both cerebral hemispheres.
Note:
Multiple superficial surface incisions made all over the
body reveals nil other injuries.
OTHER FINDINGS:
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Peritoneal cavity – empty; Pleural cavity – empty;
Pericardium – contains 15 ml of straw colour fluid; Heart –
right side fluid blood, left side empty; Coronaries – Patent;
Lungs – cut section congested; Larynx & trachea – normal,
Hyoid bone – intact; Stomach – contains 150 gms of partly
digested cooked food materials, nil specific smell, mucosa
normal;
Liver, Spleen & Kidneys – cut section congested; Small
intestine – contains 20 ml of bile stained fluid, nil specific
smell. Mucosa normal; Bladder – empty; Brain – described.
FINAL OPTION:
The deceased would appear to have died of Asphyxia
due to ligature strangulation with head injury, 18-22 hours
prior to autopsy.
He was given an opinion that the deceased would appear to have died of
Asphyxia due to ligature strangulation with head injury.
6. P.W.15-Murugan, Sub-Inspector of Police continued the
investigation and recorded the statement of witnesses and based on their
statements and also the statement given by the Postmortem doctor, altered
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FIR into 302 of IPC. He sent the alteration report, and materials objects to
the learned Judicial Magistrate No.I, Madurai. Thereafter, he handed over
the case records to P.W.26-Inspector of Police.
7. P.W.26 Inspector of Police, Theppakulam Police Station, took up
the same for further investigation. He continued the investigation and
arrested the accused. On such arrest, A1, voluntarily gave a confession
statement. Based on the admissible portion of the confession statement, he
had recovered the material objects. Thereafter, he recorded the statement of
the other witnesses including the Doctor, who conducted postmortem. After
completing the investigation, on 30.11.2009, he filed the final report before
the learned Judicial Magistrate No.I, Madurai, for the offence under
Sections 302 of IPC.
8. Considering the above materials, the trial Court framed charges
under Section 302 r/w 34 of IPC and the accused denied the same as false
and opted for trial. In order to prove its case, the prosecution examined as
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Crl.A.(MD).No.555 of 2018
many as 26 witnesses as P.W.1 to P.W.26, marked 25 documents as Ex.P1 to
Ex.P.25 and also produced 4 Material Objects.
9. Out of the witnesses examined, P.W.1 is the wife of the deceased.
She was working as a Teacher. She deposed that there was some property in
the family. She further deposed that on 04.06.2009 her sister-in-law's
second daughter's marriage took place and on that day she enquired about
the property dispute to the deceased, but the deceased requested her not to
interfere in the property dispute. On the date of occurrence, she returned
from the School to the house at 05.30 p.m., the deceased chappal was found
outside of the house and the door was locked. P.W.1 and her eldest son
knocked the door forcibly and opened door and seen that her husband was
hanging in a yellow nylon rope. P.W.1 reported the matter to the police.
P.W.2 is the eldest son of the deceased. He accompanied with the P.W.1 and
he corroborated the version of P.W.1. P.W.3 is the another son of the
deceased and he deposed that he has seen the accused No.3 enter into the
house of the deceased, later he came to know that his father died.
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10. P.W.4 is the house owner of P.W.1, her evidence has no substance.
P.W.5 is the neighbour of P.W.1. He arrived in the scene of occurrence after
hearing the noise from P.W.1. P.W.6 cited as a witness for last scene theory,
he was treated as hostile. P.W.7 is a teacher in Sowrastra School, he was
treated as hostile. P.W.8 speaks about the preparation of mahazar. P.W.9 is
the doctor working in Government Rajaji Hospital, Madurai. He declared
that the deceased died and sent the body to the mortuary.
11. P.W.10 conducted postmortem autopsy and issued postmortem
certificate Ex.P5. His final opinion was marked as Ex.P6. P.W.11, is a co-
teacher, and he was told that the deceased had committed suicide by
hanging. P.W.12 is the brother of P.W.1. He heard the news over phone
from P.W.1, requested him to come to the house for taking the deceased to
hospital. P.W.12 has gone to the deceased house and instructed P.W.1 to
report the matter to the police that the deceased committed suicide by
hanging due to stomach ache.
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12. P.W.13 is working as a Headmaster in the Sowrastra Higher
Secondary School. He has placed the copy of the attendants register.
P.W.14 the Grade-I constable, who has handed over the dead body to the
doctor for postmortem. After the postmortem, he has handed over the body
to the relatives. P.W.15 is the Sub-Inspector Police, who has registered a
case. He is the first investigating officer, and examined some of the
witnesses and prepared an Observation Mahazar, Rough Sketch and
Athachi.
13. P.W.16, P.W.17, P.W.18, P.W.19, P.W.20, P.W.21 were treated as
hostile witnesses. P.W.22 speaks about the motive in this case and he is
working as a statistical Inspector, the deceased is his sister's husband.
P.W.23 is a hearsay witness. P.W.24 treated as hostile. P.W.25 is working as
a Head-clerk in the Sowrastra Higher Secondary School. He deposed that
one day prior to the occurrence the deceased applied for leave. On the date
of occurrence, the deceased availed half day leave in the afternoon session.
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P.W.26 is the Inspector of Police, who has conducted the investigation,
altered the FIR and examined the witnesses and laid the charge-sheet.
14. The above incriminating materials were put to the accused under
Section 313 Cr.P.C. The accused denied the same as false. On their side,
they have not examined any witnesses.
15. Having considered all the above materials, the trial Court found
the accused not guilty for the offence under Section 302 r/w 201 r/2 34 of
IPC and ultimately, acquitted the accused from all charges.
16. We have heard Mr.R.Venkateswaran, learned counsel appearing
for the appellant, Mr.A.K.Alagarsamy, learned counsel appearing for the
respondents 1 & 2 and Mr.S.Ravi, learned Additional Public Prosecutor
appearing for the fourth respondent. We have also perused the records
carefully.
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17. The learned counsel appearing for the appellant would submit that
the evidence of P.W.15, who speaks about the extra judicial confession
given by A3 to P.W.16 was not disputed by the accused during the cross-
examination. The trial court ought not to have disbelieved the evidence of
prosecution witnesses. The learned trial Court without considering the
evidences in a proper perspective, came to the conclusion that the
prosecution has not proved their case beyond reasonable doubt.
18. Per contra, the learned counsel appearing for the
accused/respondents 1 to 3 would contend that the extra judicial confession
given by A3 to P.W.16 was not proved as P.W.16 turned hostile. The trial
Court, considering all these aspects, has rightly came to the conclusion that
before the occurrence the deceased was suffering from stomach ailment and
took self medicines and due to that ailment, he ought to have committed
suicide. The trial Court considering entire materials rightly acquitted the
accused.
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Crl.A.(MD).No.555 of 2018
19. Heard the learned Additional Public Prosecutor appearing for the
fourth respondent. We have considered the rival submissions made by the
learned counsel appearing on either side.
20. This is a case of circumstantial evidence. The deceased is none
other than the son of A3. The accused Nos.1 & 2 are the deceased sister's
husband and son. The motive for the occurrence projected by the
prosecution is that there was a civil dispute regarding sharing of house
property at Madurai. P.W.1, who is the wife of the deceased, speaks about
the motive. The main circumstance relied upon by the prosecution is the last
seen theory. To substantiate the same, they have examined P.W.3 son of the
P.W.1 and the deceased. According to P.W.3, on the date of occurrence, he
was playing in the opposite house. In the afternoon, the deceased came and
took him home for lunch. Afterwards the deceased left the house stating
that he will return home in the night and his brother will be brought by his
mother. Then P.W.3 gone to the nearby house. After some time, he went to
his grand-father, A3's house, at that time A3 was not there and he slept there.
Thereafter, he was informed that his father died.
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21. From a careful perusal of his evidence, it is seen that, after the
lunch, the deceased left the house, and PW.3 only seen A3, came to his
house, after that P.W.3 did not see the accused along with the deceased
before the occurrence. Apart from that, two more witnesses P.Ws.6 & 7,
who are the neighbours, were examined in respect to the last seen theory,
were turned hostile, and the prosecution has failed to prove the last seen
theory.
22. The next circumstances relied upon by the prosecution is recovery
of material objects viz., P.Ws.20 & 21 and mahazar witness, and they were
also turned hostile. Further, the Extra Judicial Confession said to have
given by A3 to P.W.16, who is a close relative of deceased, he has also
turned hostile. It is a settled law that the extra judicial confession is a very
weak piece of evidence, unless the other circumstances corroborates the
same, the conviction cannot be sustained, based on the extra judicial
confession. These are all the circumstances relied upon the prosecution and
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the prosecution has failed to prove none of the circumstances beyond
reasonable doubts pointing out the guilt of the accused.
23. Law is well settled, that, in the appeal against acquittal, the order
of acquittal should not be lightly interfered with by the appellate Court, and
the appellate Court, should give proper weightage and consideration to the
views of the trial Court. The appellate Court should not ordinarily set aside
the judgment of acquittal in a case where two views are possible, though the
view of the appellate Court may be the more probable one. The Honourable
Supreme Court in Babu vs. State of Kerala reported in (2010) 3 SCC (Cri)
1179, has held as follows:
“12. This court time and again has laid down the
guidelines for the High Court to interfere with the judgment
and order of acquittal passed by the trial Court. The
appellate court should not ordinarily set aside a judgment
of acquittal in a case where two views are possible, though
the view of the appellate court may be the more probable
one. While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence on
record, so as to arrive at a finding as to whether the views
of the trial Court were perverse or otherwise unsustainable.
The appellate court is entitled to consider whether in
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arriving at a finding of fact, the trial Court had failed to
take into consideration admissible evidence and/or had
taken into consideration the evidence brought on record
contrary to law. Similarly, wrong placing of burden of proof
may also be a subject matter of scrutiny by the appellate
court. (Vide Balak Ram v. State of U.P. (1975) 3 SCC 219:
1974 SCC (cri) 837; Shambhoo Missir & Anr. v. State of
BiharAIR 1991 SC 315;Shailendra Pratap & Anr. v. State of
U.P. (2003) 1 SCC 761;Narendra Singh v. State of M.P.
(2004) 10 SCC 699;Budh Singh & Ors. v. State of U.P.
(2006) 9 SCC 731; State of U.P. v. Ramveer Singh (2007)
13 SCC 1025; S. Rama Krishna v. S. Rami Reddy AIR 2008
SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC
206;Perla Somasekhara Reddy & Ors. v. State of A.P.
(2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of
Himachal Pradesh (2010) 2 SCC 445).
13.In Sheo Swarup and Ors. v. King Emperor AIR
1934 PC 227, the Privy Council observed as under:
"...the High Court should and will always give proper
weight and consideration to such matters as (1) the views
of the trial Judge as to the credibility of the witnesses, (2)
the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has
been acquitted at his trial, (3) the right of the accused to
the benefit of any doubt, and (4) the slowness of an
appellate court in disturbing a finding of fact arrived at by
a Judge who had the advantage of seeing the witnesses...."
14. The aforesaid principle of law has consistently
been followed by this Court. (See:Tulsiram Kanu v. The
State (AIR 1954 SC 1); Balbir Singh v. State of Punjab(AIR
1957 SC 216);M.G. Agarwal v. State of Maharashtra(AIR
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Crl.A.(MD).No.555 of 2018
1963 SC 200); Khedu Mohton & Ors. v. State of Bihar(1972
2 SCC 450); Sambasivan and Ors. v. State of Kerala (1998)
5 SCC 412; Bhagwan Singh and Ors. v. State of M.P.
(2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and
Anr. (2007) 3 SCC 755).
15.In Chandrappa v. State of Karnataka(2007) 4
SCC 415, this Court reiterated the legal position as under:
"(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of
law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
ofan appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
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criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court."
16.In Ghurey Lal v. State of Uttar Pradesh (2008) 10
SCC 450, this Court re-iterated the said view, observing
that the appellate court in dealing with the cases in which
the trial courts have acquitted the accused, should bear in
mind that the trial court's acquittal bolsters the
presumption that he is innocent. The appellate court must
give due weight and consideration to the decision of the
trial court as the trial court had the distinct advantage of
watching the demeanour of the witnesses, and was in a
better position to evaluate the credibility of the witnesses.
17.In State of Rajasthan v. Naresh @ Ram
Naresh(2009) 9 SCC 368, the Court again examined the
earlier judgments of this Court and laid down that an
"order of acquittal should not be lightly interfered with
even if the court believes that there is some evidence
pointing out the finger towards the accused."
18.In State of Uttar Pradesh v. Banne alias Baijnath
& Ors. (2009) 4 SCC 271, this Court gave certain
illustrative circumstances in which the Court would be
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justified in interfering with a judgment of acquittal by the
High Court. The circumstances includes:
i) The High Court's decision is based on totally
erroneous view of law by ignoring the settled legal
position;
ii) The High Court's conclusions are contrary to
evidence and documents on record;
iii) The entire approach of the High Court in dealing
with the evidence was patently illegal leading to grave
miscarriage of justice;
iv) The High Court's judgment is manifestly unjust
and unreasonable based on erroneous law and facts on the
record of the case;
v) This Court must always give proper weight and
consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in
interfering with a case when both the Sessions Court and
the High Court have recorded an order of acquittal.
A similar view has been reiterated by this Court in
Dhanapal v. State by Public Prosecutor, Madras (2009) 10
SCC 401.
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19. Thus, the law on the issue can be summarised to
the effect that in exceptional cases where there are
compelling circumstances, and the judgment under appeal
is found to be perverse, the appellate court can interfere
with the order of acquittal. The appellate court should bear
in mind the presumption of innocence of the accused and
further that the trial Court's acquittal bolsters the
presumption of his innocence. Interference in a routine
manner where the other view is possible should be avoided,
unless there are good reasons for interference.”
24. Keeping the above principle in mind, we have considered the
judgment of the trial Court, and we are of the view that the findings of the
trial court cannot be held as perverse and no interference is required.
25. In the result, we find no merit in this appeal and the same deserves
to be dismissed. Accordingly, this Criminal Appeal is dismissed and the
acquittal of the accused is hereby confirmed.
[V.B.D.,J.] & [J.N.B.,J.]
30.09.2021
Index : Yes / No
Internet : Yes / No
am
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Crl.A.(MD).No.555 of 2018
Note :
In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate / litigant concerned.
To
1.The Inspector of Police
Theppakulam Police Station,
Madurai District.
2.The Additional Sessions Judge/
Fast Track Court No.1, Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
Copy to
The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court, Madurai.
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Crl.A.(MD).No.555 of 2018
V.BHARATHIDASAN,J.
and
J.NISHA BANU,J.
am
JUDGMENT MADE IN
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30.09.2021
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