Madras High Court
Selvi vs The State on 17 October, 2022
Crl.A(MD)No.85 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.10.2022
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
CRL.A.(MD)No.85 of 2020
and
Crl.M.P.(MD) No.4722 of 2022
Selvi .. Appellant / Accused
Vs.
The State, rep. by
The Inspector of Police,
Madukoor Police Station,
Thanjavur District.
(In Crime No.82 of 2016) .. Respondent / Complainant
1/22
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Crl.A(MD)No.85 of 2020
PRAYER: Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure, praying to call for the judgment, dated 03.01.2020 made in
S.C.No.209 of 2016, on the file of the learned Sessions Judge, Fast Track
Mahila Court, Thanjavur and set aside the same and allow this Criminal
Appeal.
For Appellant : Mr.M.S.Jeyakarthik
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
JUDGMENT
J. NISHA BANU, J.
AND
N. ANAND VENKATESH, J.
This Criminal Appeal has been filed against the Order and
Judgment of the learned Sessions Judge, Fast Track Mahila Court,
Thanjavur, made in S.C.No.209 of 2016, dated 03.01.2020, convicting and
sentencing the appellant in the following manner :
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Crl.A(MD)No.85 of 2020
Provisions under Sentence of imprisonment and
Sl.No.
which convicted fine amount
1. 302 IPC To undergo life imprisonment
and to pay a fine of Rs.10,000/-
(Rupees Ten Thousand only)
and in default, to undergo one
year simple imprisonment.
2. 201 IPC To undergo seven years rigorous
imprisonment and to pay a fine
of Rs.5,000/- (Rupees Five
Thousand only) and in default,
to under go one year simple
imprisonment.
3. 404 IPC To undergo three years rigorous
imprisonment and to pay a fine
of Rs.2,000/- (Rupees Two
Thousand only) and in default,
to under three months simple
imprisonment.
2. The case of the prosecution is that the deceased Kiliammal,
aged about 85 years, did not have any children and she was maintained by
one Singadurai (P.W.2). Since P.W.2 was residing at Chennai, the deceased
was taken care by his relative P.W.1 and he used to send the expenses every
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Crl.A(MD)No.85 of 2020
month. The further case of the prosecution is that the appellant noticed the
deceased wearing gold jewellery and hence, decided to steal the same. On
10.3.2016, at about 9.30 a.m., the appellant volunteered to take the deceased
to the hospital and made her come to her house. She was fed by the
appellant and the deceased was taking rest by lying down. At that point of
time, the appellant demanded from the deceased the gold ornaments and
when it was not given, the appellant is said to have attacked the deceased
with a wooden stick (M.O.7) on her head and caused her death. Thereafter,
the appellant is said to have taken away all the golden jewellery. The
jewellery that was stolen, was misappropriated. The deceased was taken in a
gunny bag and the dead body was concealed.
3. According to the prosecution, this incident should have taken
place between 9 am on 10.03.2016 to 7.30 am on 11.03.2016. The dead
body of the deceased was seen by P.W.4 and P.W.5 on 11.03.2016 at about
7.30 am and they informed the same to P.W.1. P.W.1, who was searching for
the deceased, was enquiring in the hospital and in the nearby places and at
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Crl.A(MD)No.85 of 2020
this point of time, P.W.4 and P.W.5 informed her about the dead body of the
deceased. This was informed to P.W.2 and the information was also sent to
the police. Within half-an-hour, the police came to the place where the dead
body was found. Thereafter, the body was sent for post-mortem. A
complaint was prepared by one Veerapandian and P.W.1 went to the police
station around 2.30 p.m. and gave the complaint (Ex.P1).
4. The FIR was registered by P.W.20 in Crime No.82 of 2016
(Ex.P10). The investigation was taken up by P.W.21 and on completion of
investigation, the final report was filed before the Judicial Magistrate,
Pattukottai. The case was committed to the Principal District and Sessions
Court, Thanjavur and it was made over to the Court below.
5. The Court below framed charges against the appellant for the
offence under Sections 302, 404 and 201 of IPC. The prosecution examined
P.W.1 to P.W.21 and marked Ex.P1 to Ex.P19 and M.O.1 to M.O.13 were
identified and marked. The incriminating materials collected during the
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Crl.A(MD)No.85 of 2020
course of trial was put to the appellant while she was questioned under
Section 313 (1) (b) Cr.P.C. and the same was denied as false.
6. The Court below on considering the facts and circumstances
of the case and on appreciation of evidence, came to the conclusion that the
prosecution has proved the case beyond reasonable doubts and convicted
and sentenced the appellant in the manner as stated supra. Aggrieved by the
same, the present Criminal Appeal has been filed before this Court.
7. Heard Mr.M.S.Jeya Karthik, learned counsel appearing on
behalf of the appellant and Mr.A.Thiruvadi Kumar, learned Additional
Public Prosecutor appearing on behalf of the respondent.
8. We have carefully gone through the materials available on
record and considered the submissions made on either side.
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Crl.A(MD)No.85 of 2020
9. The case of the prosecution hinges upon circumstantial
evidence. The circumstances relied upon by the prosecution are:
a) The death of the deceased is homicide as
spoken to by the Doctor P.W.15 through whom the
post-mortem report was marked as Ex.P8.
b) The motive behind the crime as spoken to
by P.W.1.
c) The extra judicial confession given by the
accused to P.W.10.
d) The last seen theory as spoken by P.W.3
and P.W.16.
e) Arrest and recovery spoken by P.W.10,
P.W.12 and P.W.13 and substantiated by Ex.P5 to
Ex.P7 and M.O.1 to M.O.5.
f) The evidence of P.W.14 who saw the
accused carrying the dead body in a gunny bag with
the help of her son and
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Crl.A(MD)No.85 of 2020
g) The recovery of the stolen jewels, which
has not been explained by the accused and the
presumption under Section 114 (a) of the Indian
Evidence Act.
10. Insofar as the first circumstance is concerned, the dead
body was identified by P.W.4 and P.W.5 on 11.03.2016 at 7.30 a.m. Based
on the complaint given by P.W.1, P.W.20 registered the FIR and the
investigation was taken up by P.W.21 on 11.03.2016 at about 3.45 p.m. The
Investigation Officer went to the place where the dead body was found and
called for the assistance of the scientific experts and sniffer dog. The dead
body was taken to the General Hospital, Pattukotai and the post-mortem was
conducted by P.W.15 and the post-mortem report was marked as Ex.P8. The
injuries recorded in the post-mortem report are extracted hereunder :-
"1) Laceration parieto occipital region 8 x 3 x 2 cms.
2) Irregular fracture of occipital bone 3 x 3 cms.
3) Bleeding (clotted) through both ears.
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4) Dark brown discolouration of neck anterior
portion and upper chest present."
11. A final opinion was given to the effect that the death should
have been caused due to shock and haemorrhage sustained by head injury.
12. It is clear from the above that homicide was the cause of the
death.
13. In a case based on circumstantial evidence, motive assumes
a great significance. The prosecution has relied upon the evidence of P.W.1
to support its theory on motive. P.W.1 had given the complaint (Ex.P1) on
11.03.2016 at about 3.00 p.m. On carefully going through the complaint,
there is not even a whisper about the deceased wearing gold ornaments and
the same missing from her. It should be borne in mind that the prosecution
is attempting to project this case as a murder for gain. Hence, the only
motive for murdering the deceased is the gold jewelleries that is said to have
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Crl.A(MD)No.85 of 2020
been worn by her when she left the house. There is no mention about this
crucial factor in Ex.P1. This aspect on the missing jewels comes up for the
first time only when P.W.1 was put in box.
14. The accused is said to have gone to the Village
Administrative Officer - P.W.10 and had given an extra judicial confession
and which was submitted as a report Ex.P4 to the Inspector of Police,
Madukkur Police Station. The accused is said to have appeared in the office
of the V.A.O on 15.03 2016 at about 7.00 a.m. and given the confession.
There is no difficulty in acting upon the extra judicial confession.
However, it must sound natural and it must convince the Court that the
accused did give a voluntary confession to P.W.10. P.W.10 in his evidence
states that the office opens only at 10.00 a.m. and whereas, he along with his
Assistant were present at his office on 15.03.2016 at 7.00 a.m. when the
extra judicial confession is said to have been made and it is not known as to
why they were present so early in the office on that day. Ex. P16 is the
confession that was recorded from the accused by the Assistant of P.W.10.
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It is quite surprising that this document was not marked through P.W.10 and
it was actually marked through P.W.21, who is the Investigation Officer.
Therefore, the contents of the so-called confession statement was not able to
be confronted through P.W.10. The accused is not known to P.W.10 and it is
quite unnatural that the accused had voluntarily gone to a person, who is not
known to her and had confessed to a murder.
15. The next crucial factor that has been relied upon as a
circumstance is the arrest and recovery. According to P.W.21, the accused
was arrested on 15.03.2016 after getting the information from P.W.10 that
the accused had confessed to the commission of crime. The confession of
the accused was recorded between 8.45 a.m. to 10.45 a.m. and the
admissible portion was marked as Ex.P5. Based on the same, M.O.1 to
M.O.3 were recovered. Admittedly, the confession was recorded in the
presence of P.W.10 and his Assistant. Surprisingly, P.W.10 does not state
anything in his evidence about the recovery when he was examined on
23.02.2017. P.W.10 is recalled on 03.03.2017 and thereafter Ex.P5 and the
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seizure mahazar - Ex.P6, M.O.1 to M.O.3 were marked. That apart, through
seizure mahazar Ex.P7, M.O.4 and M.O.5 were also marked. These
Material objects were introduced through P.W.12 and P.W.13.
16. Before going into the evidence of P.W.12 and P.W.13, this
Court has to make a comment on Ex.P14 and Ex.15 which were the receipts
relied upon for proving M.O.4 and M.O.5 being pledged with P.W.12, who
in turn, had kept it in the locker in a private bank whose manager was
examined as P.W.13. These two documents did not form part of the final
report. These two documents were not marked through P.W.12 and P.W.13
and all of a sudden it came into existence when P.W.21, Investigation
Officer was examined on 23.08.2017. When these two documents were
marked, serious objections were made on the side of the accused and the
court below recorded the objections and in spite of the same, it was not even
dealt with at the time of passing the judgment.
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Crl.A(MD)No.85 of 2020
17. P.W.12 speaks about the brother of the accused (P.W.11)
pledging the jewels and receiving a sum of Rs.31,000/- (Rupees Thirty One
Thousand only). He specifically states that P.W.21 had collected the
receipts pertaining to M.O.4 and M.O.5. However, P.W.21 in his evidence
speaks about P.W.11 handing over these receipts. P.W.11 did not support the
case of the prosecution and he was treated as hostile. This witness is said to
have taken P.W.21 to the private bank locker. P.W.13 states that P.W.12
along with P.W.10 and P.W.21 had come to the bank and he showed the
locker and came out of the room. He did not see M.O.4 and M.O5 taken out
of the locker.
18. P.W.10 spoke about the recovery of M.O.4 and M.O.5 only
after he was recalled. He states that the jewelleries M.O.1 to M.O.5 were
returned to P.W.1 after recovery and P.W.1 does not even talk about the
same in his evidence. P.W.10 was not even able to say where the private
bank is situated and he states that he was sitting inside a jeep.
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19. A very strange procedure was followed by the court below
by permitting M.O.6 and M.O.7 to be marked at the time of re-examination
of P.W.10. These two material objects are the gunny bag in which the
deceased is said to have been taken by the accused and the wooden stick
with which the deceased is said to have been attacked.
20. On an overall assessment of the manner in which the arrest
and recovery have taken place in this case, it becomes unreliable and
doubtful and every time, the prosecution has improved its case. This doubt
gets even more stronger since P.W.1 in the complaint has not even spoken
about the gold jewels worn by the deceased and which is said to have gone
missing.
21. In view of a serious doubt on the very recovery of the
Material Objects, the presumption under Section 114(a) of the Indian
Evidence Act will not apply to this case and the judgment relied upon by the
learned Additional Public Prosecutor in Gulab Chand Vs. State of
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Madhya Pradesh reported in 1995 (3) Supreme Court Cases - 574, will
not apply to the facts of the present case.
22. Insofar as the last seen theory is concerned, the prosecution
is relying upon the evidence of P.W.3 and P.W.16 read along with the
evidence of P.W.14. P.W.3 is said to be the neighbour of the deceased. She
states that the deceased informed her on 10.03.2016 at about 9.00 a.m. that
she is going along with the accused to the Government Hospital. After
nearly 2 hours, the accused is said to have informed P.W.3 that the deceased
did not come to her house and she seems to have gone alone to the hospital.
During the cross-examination, P.W.3 states that except P.W.3, no one else
knows about the deceased going to the hospital and the accused informing
her after two hours that the deceased did not come to her house.
23. P.W.16, who is the wife of P,W,3, also talks about the
deceased informing that she is going to the hospital along with the accused.
When P.W.3 has made a very clear statement that except him no one else
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knows about the deceased going along with the accused to the hospital, a
similar statement made by P.W.16 sounds unbelievable.
24. P.W.14 speaks about the accused travelling in a two-wheeler
carrying a gunny bag along with her son on 10.03.2016 at about
7.30 p.m. Her theory about the deceased being carried in a gunny bag with
a boy, aged about 13 to 14 years, sounds very doubtful and this is more so
since the very recovery of the gunny bag (M.O.5) was found to be not
believable.
25. In the present case, the extra judicial confession was given
on 15.03.2016 and the entire recovery was completed at a break-neck speed
on a single day. The recoveries that have been effected were merely
make-believe ones and they do not inspire the confidence of this Court.
26. The version given by the witnesses namely, P.W.17
(Photographer), P.W.18 (Sniffer Dog Police), P.W.19 (Scientific Analyst)
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and P.W.21 (Investigation Officer) shows that the dead body of the deceased
was found between 5.00 p.m. to 5.30 p.m. on 11.03.2016. Ex.P.16 which is
the extra judicial confession of the accused that was recorded by P.W.10,
shows that the deceased had met the accused on 10.03.2016 at 9.30 a.m.
27. The evidence of P.W.15, who is the post-mortem Doctor
shows that the deceased had died 16 to 24 hours prior to 11.30 a.m. on
12.03.2016. This means that the deceased should have died only after
11.30 a.m. on 11.03.2016. He also makes it clear that there is no chance of
the deceased having died 36 to 48 hours prior to 11.30 a.m. on 12.03.2016.
In view of the same, the evidence of P.W.4 and P.W.5 to the effect that they
saw the dead body at 7.30 am on 11.03.2016, becomes totally unbelievable.
P.W.1 states that the body was sent for post-mortem at 1.00 p.m. on
11.03.2016 and this goes contrary to the evidence of P.W7, P.W.18, P.W9
and P.W21, who speak about the dead body available between 5.00 to
5.30 p.m. Hence, there is a major contradiction as to when the death had
actually taken place, since the story as projected by the prosecution runs
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Crl.A(MD)No.85 of 2020
contrary to the evidence of the post-mortem Doctor.
28. There is yet another material fact which has been
completely lost sight of by the Investigation Officer. Neither P.W.1 nor
P.W.2 have identified M.O.1 to M.O.5 and stated that it belonged to the
deceased. They are the best persons, who should have identified the jewels
and stealing the jewels is projected as a motive to the crime. Even without
establishing the same, the prosecution went on an assumption that M.O.1 to
M.O.5 belonged to the deceased. This material fact virtually wipes off the
motive as well as the so-called recovery in the present case.
29. The last straw on the camel’s back is the Investigation
Officer not even preparing the sketch and observation mahazar at the house
of the accused where the deceased is said to have been put to death.
According to the prosecution, the deceased was killed inside the house and
thereafter, the body was taken in a two-wheeler for about 2 kms., and was
concealed in a pathway. It is quite surprising that the place where the actual
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Crl.A(MD)No.85 of 2020
crime is said to have taken place was not even visited by the Investigation
Officer and the same is clear from his evidence.
30. The case of the prosecution is infested with gaping holes.
The chain of circumstances gets snapped at various points and it is not
complete so as to exclude the hypothesis other than the guilt of the accused.
Hence, this court has absolutely no hesitation to come to a conclusion that
the prosecution did not prove the case beyond reasonable doubts and the
benefit of doubt must go to the accused. In view of the same, this Court
has to necessarily interfere with the judgment of the trial Court and acquit
the appellant from the charge faced by her.
31. In the result,
(i) This Criminal Appeal stands allowed.
(ii) The conviction and sentence imposed on the
appellant, vide judgment and order, dated
03.01.2020, passed by the learned Sessions
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Judge, Fast Track Mahila Court, Thanjavur, in
S.C.No.209 of 2016, are set aside and the
appellant is acquitted of all charges.
(iii) Fine amount, if any, paid by her, shall be
refunded.
(iv) Bail bond, if any, executed by the appellant
and the sureties shall stand terminated.
(v) The appellant is directed to be released
forthwith, unless her custody is required in
connection with any other case.
(vi) Consequently, connected miscellaneous
petition is closed.
[J.N.B., J.] & [N.A.V., J.]
17.10.2022
Index : Yes/No
Internet : Yes
rm
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Crl.A(MD)No.85 of 2020
To
1.The Sessions Judge,
Fast Track Mahila Court,
Thanjavur.
2.The Inspector of Police,
Madukkur Police Station,
Thanjavur District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.85 of 2020
J. NISHA BANU, J.
AND
N. ANAND VENKATESH, J.
rm
JUDGMENT MADE IN
CRL.A.(MD)No.85 of 2020
17.10.2022
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