Madras High Court
Pandiyammal @ ... vs The Inspector Of Police on 20 June, 2022
Crl.A(MD)No.315 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.06.2022
CORAM :
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
Crl.A(MD)No.315 of 2020
Pandiyammal @ Sundarapandiyammal .. Appellant/Accused No.1
Vs.
The Inspector of Police,
Devaram Police Station,
Theni District.
(In Crime No.264/2007) .. Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of Criminal
Procedure Code, 1973, to call for the entire records connected to the
judgment in S.C.No.69 of 2008 on the file of the learned Additional
District and Sessions Judge (Fast Track Court), Periyakulam in Theni
District dated 21.07.2010 and set aside the conviction and sentence
imposed against the appellant.
_______________
Page No.1 of 24
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
For Appellant : Mr.R.Alagumani
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
JUDGMENT
[Judgment of the Court was made by P.N.PRAKASH, J.]
This criminal appeal is filed against the judgment and order, dated
21.07.2010 in S.C.No.69 of 2008, on the file of the learned Additional
District and Sessions Judge (Fast Track Court), Periyakulam in Theni
District.
2. The prosecution story runs thus:
2.1) For the sake of clarity, it needs to be stated at the threshold
that interestingly, there are three Murugans in this case, namely, Murugan
[P.W-1], Murugan [P.W-3] and Murugan [P.W-5].
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
2.2) The deceased Navaneethapriya was the daughter of Murugan
[P.W-1] and Booma [P.W-2] and the younger sister of Naveenkumar. She
was nine years old at the time of her death. Naveenkumar and
Navaneethapriya were studying in 5th and 4th standard respectively in
R.C.Middle School, Devaram.
2.3) The family was residing in Devaram Moonandipatti Village,
Theni District. Murugan [P.W-1] was employed as a bus driver in KSR
Engineering College in Tiruchengode. Therefore, the two children were
under the care and protection of their mother, Booma [P.W-2]. The
children used to go to school everyday around 8.00 a.m. and return home
in the evening. On 03.09.2007, Naveenkumar and Navaneethapriya left
for school, but in the evening, only Naveenkumar returned. When Booma
[P.W-2] asked him, he stated that Navaneethapriya did not come to
school. So Booma[P.W-2] alerted her neighbours and everyone started
searching for Navaneethapriya. Information was sent to Murugan
[P.W-1], who rushed to the village on the next morning, namely
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
04.09.2007. In the meanwhile, around 5.30 to 6.00 a.m., some people
found the body of Navaneethapriya in an open water tank adjacent to the
land of one Seenimuthu Nadar. Immediately, Ramar [P.W-4] carried the
body and brought it to the house of Murugan [P.W-1]. On return from
Tiruchengode, Murugan [P.W-1] gave a written complaint, based on
which, Jaculine [P.W-17] Sub Inspector of Police, registered a case in
Devaram Police Station, in Crime No.264 of 2007 under Sections 302
IPC and 379 IPC on 04.09.2007 at 7.45 hours, against unknown accused
and prepared the printed FIR [Ex.P-14], which reached the jurisdictional
Magistrate at 02.00 p.m. on 04.09.2007, as could be seen from the
endorsement thereon.
2.4) Investigation of the case was taken over by Nallu [P.W-21]
Inspector of Police, who was in-charge of Devaram Police Station. The
Investigating Officer [P.W-21] went to the place [before the house of
P.W-1], where the body was placed and prepared the observation
mahazar [Ex.P-6] and rough sketch [Ex.P-17]. He also conducted inquest
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
over the body of the deceased and the inquest report was marked as
Ex.P-19. He prepared the observation mahazar [Ex.P-6] near the open
water tank, where the body was found and also prepared a rough sketch
[Ex.P-18]. In the complaint [Ex.P-1], Murugan [P.W-1] has stated that
the ear rings and anklets worn by Navaneethapriya were missing from
the body of his daughter. In the inquest report, the involvement of the
appellant in the crime was suspected, because Murugan [P.W-3] had
stated during the inquest that when he went to the house of the appellant,
he found the appellant had had her head bath and was cleaning the
house.
2.5) This circumstance, namely, that the appellant had a head bath
and was cleaning the house was projected as an incriminating
circumstance in the inquest report, pursuant to which, the appellant was
arrested by the police on 04.09.2007 at 1.15 p.m. After the inquest, the
body was sent to the Government Hospital, Uthamapalayam, where,
Dr.Mohammed Ali Jinna [P.W-9] conducted autopsy on the body of the
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
deceased and issued the postmortem certificate [Ex.P-5].
2.6) In the postmortem certificate[Ex.P-5], Dr.Mohammed Ali
Jinna [P.W-9] has noticed three external injuries in the nose, mouth and
eyebrows. He has given the final opinion as follows:
“The deceased would appear to have died of
shock and hemorrhage due to multiple injuries
sustained, 24 to 28 hours prior to autopsy.”
2.7) After the arrest of the appellant at 1.15 p.m. on 04.09.2007 as
stated above, her confession was recorded, pursuant to which, the
appellant was taken to the house from where the following items were
recovered under the cover of a mahazar [Ex.P-11] at 3.15 p.m. on
04.09.2007 in the presence of witnesses Kannan [P.W-10] and Mohan
[not examined]:
(i) one red colour bordered violet colour saree with bloodstains
and faeces;
(ii) one black and light blue colour polyester saree with
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
bloodstains and faeces [M.O-9];
(iii) one yellow colour saree [M.O-10]
(iv) one bloodstained white shirt worn by Navaneethapriya
[M.O-4];
(v) blue colour half-skirt worn by Navaneethapriya [M.O-5];
(vi) wooden handle of spade [M.O-11] approximately having 2
feet length;
(vii) a rusted tin box having 73 c.m. length x 40 c.m. breadth x
26 cm. height and some bloodstains in the tin box [M.O-12];
(viii) an aluminium basket having height of 25 c.m. x
circumference of 25 c.m. [M.O.13];
(ix) a blue colour school bag [M.O-6];
(x) the notebooks [bound and unbound] of Navaneethapriya
[M.O-14].
2.8) After the seizure, the appellant was taken to a portia tree in
front of her house from beneath which, the following items were
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
recovered at 4.00 p.m. on 04.09.2007 under the cover of a mahazar
[Ex.P-12] in the presence of witnesses Kannan [P.W-10] and Mohan
[not examined]:
(i) a pair of black stone-fitted gold ear ring with screw
weighing 2 grams [M.O.1]
(ii) one mango designed silver anklet [M.O-2] and polythene
cover in which the ear rings and the anklet were packed.
2.9) Thereafter, the appellant was taken to the shop of Natarajan-
[P.W-11] at 4.45 p.m. on 04.09.2007 and one silver anklet [M.O.3] was
seized under the cover of a mahazar [Ex.P-13] in the presence of some
witnesses. Thereafter, the appellant was sent in judicial custody.
Thereafter, investigation was continued by Ramlakshmanan [P.W-.22]
Inspector of Police, who examined various witnesses, completed the
investigation and filed a final report in P.R.C.No.6/2008 in the Court of
the District Munsif-cum-Judicial Magistrate, Bodinaikanur against the
appellant and one Babu for the offences under Sections 302, 392, 201
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
and 202 IPC.
2.10) On the appearance of the accused, the provisions of Section
207 Cr.P.C. were complied with and the case was committed to the Court
of Session, Theni and was made over to the Additional Sessions
Court(Fast Track Court), Periyakulam for trial in S.C.No.69/2008.
2.11) The trial Court framed charges under Sections 302, 392 and
201 IPC against the appellant and as regards Babu[A2], the trial Court
framed charges under Sections 201 and 202 IPC.
2.12) When questioned, both the accused pleaded not guilty. To
prove the case, the prosecution examined 22 witnesses and marked 23
exhibits and 21 material objects.
2.13) When both the accused were questioned under Section 313
Cr.P.C., about the incriminating circumstances appearing against them,
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
they denied the same. No witness was examined nor any document
marked on behalf of the accused.
2.14) After considering the evidence on record and on hearing
either side, the trial Court, by judgment and order dated 21.07.2010 in
S.C.No.69 of 2008, acquitted Babu [A2] of both the offences and
convicted and sentenced the appellant [A1] as under :
Section of Sentence of imprisonment Fine amount
Law
302 IPC To undergo imprisonment for Rs.1,000/-, in default, to
life. undergo rigorous imprisonment
for six months.
392 IPC To undergo rigorous Rs.1,000/-, in default, to
imprisonment for ten years. undergo rigorous imprisonment
for six months.
201 IPC To undergo rigorous Rs.500/-, in default, to undergo
imprisonment for one year. rigorous imprisonment for three
months
Challenging the aforesaid conviction and sentence, Pandiyammal @
Sundarapandiyammal is before this Court in this appeal.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
3. The conviction certificate of the appellant shows that from
05.09.2007, the date on which she was produced before the
jurisdictional Magistrate for first remand, till now, the appellant is in jail.
In other words, the appellant was not released on bail during trial. After
she was convicted in the year 2010, she did not even choose to file an
appeal. However, this appeal was filed only in the year 2020 with a huge
delay of 3436 days, which was condoned by this Court and the appeal
was admitted.
4. Heard Mr.R.Alagumani, learned counsel appearing for the
appellant and Mr.A.Thiruvadikumar, learned Additional Public
Prosecutor appearing for the respondents.
5. The following facts are beyond a cavil:
i. Navaneethapriya was the daughter of Murugan [P.W-1] and
Booma [P.W-2] and sister of Naveenkumar; residing at
Devaram Moonandipatti village, Theni District;
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
ii. Both the children were studying in R.C.Middle School,
Devaram where Joy Nirmala Jothi [P.W-12] was the class
teacher and Amalraj [P.W-13] was the Headmaster;
iii. Murugan [P.W-1], father of the children was not in the village
on 03.09.2007 as he was working as a driver in
Thiruchengode, which is far away from Theni;
iv. On 03.09.2007, both the children left for school in the
morning, but Navaneethapriya did not return in the evening;
v. Navaneethapriya did not come to school on 03.09.2007 which
has been established through the evidence of Joy Nirmala
Jothi [P.W-12] and Amalraj [P.W-13];
vi. The whole village was searching for Navaneethapriya from
the evening of 03.09.2007;
vii. Navaneethapriya's body was found on 04.09.2007 around
6.30 a.m., near the common water tank by Ramar [P.W-4];
viii.The death of Navaneethapriya was a homicide;
ix. The appellant was also from the same village and was known
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
to the other villagers;
6. The short point that emerges for consideration in this appeal is,
whether the appellant was the perpetrator of the offence.
7. The prosecution case as per the final report is that, the appellant
was married to one Perumal and through him, she has three children,
Meena, Kumar and Saravanan; her husband died three years prior to the
incident; she developed intimacy with Babu [A2]; the appellant badly
needed money and so, when she saw Navaneethapriya going to school
wearing ear rings and anklets, she decided to eliminate her, remove the
ornaments and make money out of it; when she saw Navaneethapriya at
9.00 a.m., on 03.09.2007, she took her to her house, hit the child with a
spade; murdered her; removed her ornaments and disposed of the same;
she informed Babu[A2] about this and together, they disposed of the
body near the open water tank adjacent to the land of one Seenimuthu
Nadar.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
8. The prosecution is relying upon the following circumstances:
i. When Murugan[P.W-3], Ramu[P.W-6], Chinnathai[P.W-8]
saw the appellant, she had had an oil bath and was cleaning
the house;
ii. Mahendran [P.W-7] had last seen Navaneethapriya in the
company of the appellant at 8.00 a.m., on 03.09.2007;
iii. the recovery of the belongings of Navaneethapriya from the
house of the appellant vide Ex.P-11 as stated in paragraph
No.2.6 above;
iv. recovery of a pair of ear ring beneath the portia tree opposite
to the house of the appellant based on her disclosure;
v. recovery of one anklet from the shop of Natarajan [P.W-11].
9. Now, let us first deal with the evidence of Murugan [P.W-3],
Ramu [P.W-6] and Chinnathai [P.W-8].
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
10. Murugan [P.W-3], in his evidence, has stated that he is from
Devaram Moonandipatti village; he knows the appellant and
Navaneethapriya; on 03.09.2007, around 4.30 p.m., Booma [P.W-2], the
mother of Navaneethapriya, was searching for her; he also joined in
search with her on that day; but in the midnight around 12.30, he saw
the appellant in the open space near her house with a plastic pot, going
into her house; on 04.09.2007, he woke at 6.00 a.m. and saw a
commotion in the house of Murugan [P.W-1] and so he went there and
saw the body of Navaneethapriya; since he had some suspicion on the
appellant, he went to her house and found that she has had oil bath and
was cleaning her house.
11. In the cross-examination, Murugan [P.W-3] has stated that the
people in the village use the water tank round the clock and he has
specifically stated that when he saw the body of the child, it was without
clothes and was naked.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
12. Murugan [P.W-5], in his evidence, has stated that he is from
Devaram Moonandipatti village; he knows the appellant and the family
of Navaneethapriya; in the evening on 03.09.2007, Booma [P.W-2], the
mother of the child started looking out for her, he also joined the search;
on the same night around 1.00 (midnight), he saw the appellant washing
a pot in the open water tank adjacent to the land of Seenimuthu Nadar.
13. In the cross-examination, he has admitted that people of
Devaram Moonandipatti village use the water in the tank both in the day
and night hours and that people would be around there at all times.
14. Ramu [P.W-6], in his evidence, has stated that he is from
Devaram Moonandipatti village; he knows the appellant and the family
of Navaneethapriya; on 03.09.2007, he also joined the search along with
Booma [P.W-2] to find out the whereabouts of Navaneethapriya; at 12.00
in the midnight of the same day, he saw the appellant coming from the
water tank near the land of Seenimuthu Nadar, with an aluminium basket.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
15. Chinnathai [P.W-8], in her evidence, has stated that she is from
Devaram Moonandipatti village; she knows the appellant and the family
of Navaneethapriya; she also joined the search for the child; on
03.09.2007, Navaneethpriya was missing and the body was found on the
next morning near the water tank; on the previous night, around 1.00
a.m., she saw the appellant cleaning her house.
16. An analysis of the evidence of these witnesses shows that they
had not seen the appellant with Navaneethapriya at all. Murugan [P.W-3]
has stated that after the body was found, when he went to the house of
the appellant, he found her having had a head bath and was cleaning the
house whereas Chiannathai [P.W-8] stated that in the midnight of
03.09.2004, she saw the appellant cleaning the house.
17. These witnesses, at the most, say that they saw the appellant
had washing her clothes in the tank near the land of Seenimuthu Nadar,
which is commonly used by all the villagers both in the day time as well
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
in the night hours. This, by itself, in our view, is not incriminating. Then,
we have the evidence of Mahendran [P.W-7], who has stated that at 8.00
a.m. on 03.09.2007, he saw the appellant in the company of
Navaneethapriya. This witness has further stated that he knew that on
04.09.2007, the body of Navaneethapriya was found near the open water
tank, but he did not inform anybody that he had seen Navaneethapriya
with the appellant on the previous date at 8.00 a.m. and when this was
specifically put to him in the cross-examination, he stated that he forgot
and therefore, he did not tell anyone. This explanation appears to be very
unconvincing inasmuch as when the whole village was searching for
Navaneethapriya, this witness would have naturally told everyone that he
had seen Navaneethapriya with the appellant at 8.00 a.m. on 03.09.2007.
Hence, we are unable to place reliance on the testimony of this witness.
18. Finally, coming to the recovery, all the recoveries have taken
place at a break-neck speed on 04.09.2007 itself as set out above. The
first recovery is with regard to the books and dress of Navaneethapriya.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
The recovery mahazar shows that the bloodstained school uniform white
shirt [M.O.4] of Navaneethapriya was recovered from the house of the
appellant, whereas the photographs of the dead body of Navaneethapriya
clearly show that Navaneethapriya was wearing school uniform in white
colour. That apart, Muthaiya [P.W-14], Special Sub Inspector of Police,
Devaram Police Station, has clearly stated that the white shirt that was
worn by the child was handed over to him after the postmortem.
Therefore, this entire recovery becomes suspect.
19. Now, coming to the recovery of the two anklets, according to
the police, one anklet was recovered from beneath the portia tree and the
other anklet was recovered from the shop of Natarajan [P.W-11], who, in
his evidence, has stated that the appellant came with one anklet to his
shop along with one Chitra [not examined] and Thangam [P.W-16] and
sold the anklet for Rs.140/-. No document was produced by him to
substantiate this.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
20. Be that as it may, Thangam [P.W-16], in his evidence, has
stated that he is from Thiruppur and he came to Devaram Moonandipatti
village on 04.09.2007, and at that time, the appellant told him that she
has one anklet which she found on the road and wanted to dispose it of;
so, Thangam [P.W.16] took the appellant to the shop of Natarajan
[P.W-11], helped her in pledging the anklet for Rs.140/- out of which the
appellant gave Rs.10/- as commission to him. In his evidence, he has
stated that he came all the way from Thiruppur, which is far away from
the village, had a cup of tea and returned to Thiruppur. The fact remains
that the appellant herself knows Natarajan [P.W.11], because he [P.W.11]
is in the same village and if she had wanted to pledge one anklet, she
need not have taken the services of Thangam [P.W-16] at all as that
would only further incriminate her. Natarajan [P.W.11] has stated that the
appellant had sold the anklet but Thangam [P.W-16] has stated that the
appellant had pledged the anklet. Thereafter, the seizure of the other
anklet from beneath the portia tree appears, on the face of it,
unbelievable. Thus, we hold that the recoveries that have been effected
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
were merely make-believe ones and they do not inspire the confidence of
this Court. Hence, this appeal deserves to be allowed.
21. In the result,
(i) This Criminal Appeal is allowed.
(ii) The conviction and sentence imposed on the appellant, vide
judgment and order dated 21.07.2010 by the learned Additional District
and Sessions Judge (Fast Track Court), Periyakulam, in S.C.No.69 of
2008 are set aside and the appellant is acquitted of all charges. Fine
amount, if any, paid by her, shall be refunded.
[P.N.P., J.] & [R.H., J.]
20.06.2022
Index : Yes/No
Internet : Yes/No
PJL
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
To
1.The Additional District and Sessions Judge (Fast Track Court),
Periyakulam,
Theni District.
2.The Inspector of Police,
Devaram Police Station,
Theni District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
_______________
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.315 of 2020
P.N.PRAKASH, J
AND
R.HEMALATHA, J
PJL
Judgment made in
Crl.A.(MD)No.315 of 2020
20.06.2022
_______________
https://www.mhc.tn.gov.in/judis
