Madras High Court
Vidhya vs State Through on 11 December, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
Crl.A.No.254 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2023
CORAM :
THE HON'BLE MR. JUSTICE S.S.SUNDAR
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
Crl.A.No.254 of 2018
Vidhya .. Appellant / Accused
v.
State through
The Inspector of Police,
Tally Police Station,
Krishnagiri District.
(Cr.No.193 of 2009) .. Respondent/complainant
Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure, 1973, to call for the records in connection with S.C.No.93 of 2010
on the file of the learned Additional District and Sessions Judge, Hosur and
set aside the conviction and sentence imposed in judgment dated 14.11.2016.
For Appellant : Mr.K.Ethirajalu
Amicus Curiae
For Respondent : Mr.A.Gokulakrishnan
1
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Crl.A.No.254 of 2018
Additional Public Prosecutor
JUDGMENT
(Order of the Court was delivered by SUNDER MOHAN,J.)
This Criminal Appeal has been filed by the sole accused, challenging
the conviction and sentence imposed upon her vide judgment dated
14.11.2016 in S.C.No.93 of 2010 on the file of the learned Additional District
and Sessions Judge, Hosur.
2 (i) It is the case of the prosecution that the appellant is the niece of
the deceased; that the mother of the appellant was abandoned by her father
due to the advice of the deceased; that therefore, she had motive to do away
with the deceased; that on 05.11.2009 at about 3.45pm she went to the house
of the deceased and attacked her with a Bill Hook (bfhLths;) on the neck
of the deceased; and thereafter, left the house in a scooter.
(ii) It is the further case of the prosecution that neighbours including
PW6 saw the accused with the Bill Hook (bfhLths;) standing outside the
house, they went into the house and saw the deceased lying dead in a pool of
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blood; that they had informed the son of the deceased; that PW1, the son of
the deceased came to know through one Suresh Babu that his mother was
done to death by the accused; that thereafter, he lodged a complaint (Ex.P1),
based on which, an FIR (Ex.P14) was registered by the Sub Inspector of
Police [PW10] at 19.00 hrs on the same day.
(iii) PW13, the investigation officer took up the investigation and went
to the scene of occurrence, he prepared the Observation Mahazar (Ex.P3) and
Rough Sketch (Ex.P20). Thereafter, he arranged to take pictures of the
deceased by the Photographer [PW7]. The photographs were marked as
Ex.P10 and the Compact Disc was marked as Ex.P11. The investigation
officer conducted inquest at 11.00pm and prepared the inquest report
(Ex.P21). Thereafter, he sent the body for postmortem and collected the
bloodstained earth and the earth which was not bloodstained from the scene
of occurrence on 06.11.2009 at 2.00am in the presence of the Village
Administrative Officer-Rajesh (PW5) and the Village Assistant-Kumaresan
and recorded their statements.
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(iv) On 06.11.2009 at about 5.00am, when PW13 was with PW5-VAO
and the village assistant by name Kumaresan (not examined) during the
routine vehicle check up, they saw the accused in a two-wheeler bearing
Regn.No.KA05-EZ-8183 and when they enquired the accused, she had given
a confession about the alleged occurrence. Thereafter, he seized the two
wheeler-Honda Activa, under seizure mahazar-Ex.P6.
(v) Thereafter on the confession given by the appellant PW13 had
seized the Bill Hook (bfhLths;) [MO.3]. He also seized the material
objects viz., M.O.6 and M.O.7, which were the dress materials worn by the
deceased at the time of the occurrence. After examining the other witnesses,
PW13 had laid the final report on 16.11.2009 before the learned District
Munsif-cum-Judicial Magistrate, Denkanikottai, Krishnagiri District, for the
offence under Section 302 IPC against the appellant/accused.
(vi) On appearance of the appellant, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C.No.93 of 2010 and was made over to the Additional District
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and Sessions Judge, Hosur, for trial. The trial Court framed charge u/s.302 of
IPC as against the appellant and when questioned, the appellant pleaded 'not
guilty'.
(vii) To prove the case, the prosecution examined 13 witnesses and
marked 23 exhibits and 8 material objects. When the appellant was
questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing
against her, she denied the same. On the side of the appellant/accused, though
no witness was examined, a letter dated 10.02.2010 written by the father of
the appellant/accused to the Superintendent of Police, Krishnagiri District
was marked as Ex.D1.
(viii) The Trial Court after considering the evidence on record found
that the appellant was guilty and convicted the appellant/accused under
Section 302 IPC and sentenced her to undergo life imprisonment and pay fine
of Rs.2,000/- in default to undergo Rigorous Imprisonment for one year.
Hence, the accused has preferred the appeal challenging the said conviction
and sentence.
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3. Heard, Mr.K.Ethirajalu, learned Amicus Curiae appearing for the
appellant/accused and Mr.A.Gokulakrishnan, learned Additional Public
Prosecutor appearing for the respondent/state. This Court also perused all the
materials available on record.
4. The learned counsel for the appellant/accused would submit that the
case is based on circumstantial evidence and the prosecution has not
established all the circumstances conclusively; that even the motive alleged
by the prosecution is not strong enough to hold that the appellant is guilty of
the offence; that the evidence of last seen by PW2 and PW6 cannot be
believed; that it is PW2's evidence that both deceased and the appellant came
to his shop to buy batter for preparing the snack 'bonda' and that PW2 did not
support the prosecution case; that the evidence of PW6 is also artificial and
their evidence alone cannot be the basis to conclude that the appellant had
caused the death of the deceased; and that therefore, the learned counsel for
the appellant/accused prayed for acquittal.
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5. The learned Additional Public Prosecutor, per contra submitted that
motive has been established beyond reasonable doubt and there is no reason
to disbelieve the said aspect of the prosecution case; that apart, PW2 has last
seen the appellant/accused along with the deceased prior to the occurrence;
and that though, PW2 was won-over by the defence and changed his version
in the cross examination, the evidence of PW6, who saw the appellant with a
Bill Hook (bfhLths;), going out of the house in a Scooter, is sufficient to
believe the circumstance of last seen theory and prayed for dismissal of the
appeal.
6. On perusal of the records, this Court finds that PW9-Doctor, who
conducted postmortem had found the following injures on the deceased and
he had opined that the deceased died due to the injuries sustained by him.
External Injuries:
1) Laceration 1x1cm x bone depth with edges inverted over (L)
side of forehead.
2) Laceration 15 x 3 x brain depth seen over supranachal region
3) Laceration 15 x 3 x brain depth seen over occipital region
with brain matter extruding through wound.
4) Laceration 10x3x bone depth over posterior part of (R)
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parietal region.
5) Laceration 15x3x brain debt over (L) parietal region
6) Laceration 3x3 cms over ® pinna of ear
7) Laceration 3x1xbone depth over (L) cheek.
8) Chop injury over radial side of ® palm with loss of phalanx
of ® thumb
9) Laceration 4x2x1cm over ® index finger”
Therefore, it is clear that the deceased died due to homicidal violence and
there is no dispute about the said fact in the instant case.
7. The next question is whether the appellant is guilty of causing the
said homicide. The only circumstance relied upon by the prosecution as seen
from the evidence is the circumstance of last seen as spoken by PW2 and
PW6. The motive has not been clearly established.
8. As stated above, PW2 had stated that at 3.15pm on 05.11.2009, both
the accused and the deceased came to his shop to purchase batter for
preparing a snack 'bonda'. It is the admitted case of the prosecution that the
appellant was living in the house of the deceased while she was studying in
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school and she used to go to the house of the deceased often and they were in
cordial relationship all the time. In fact, the prosecution evidence suggest that
there was no quarrel or enmity between the appellant and the deceased.
Therefore, even assuming that the appellant and the deceased went together to
PW2's shop that circumstance by itself does not lead to the inference that the
accused was involved in the alleged offence of murder. That apart, we find
that PW2 in the cross examination has stated as follows:
“...M$u; vjphpa[k;. ,we;Jnghd $hdfpuhkk;kht[k; vd;
filapy; te;J kht[ th';fpdhu;fs; vd;why; filapy;
Tl;lkhf ,Ue;jjhy; ahu; te;J vd; filapy;
bghUl;fs; th';fpdhu;fs; vd;W vd;dhy;
brhy;yKoahJ////”
The above version is contrary to his testimony in the chief examination.
Again in re-examination by the prosecution, he had stated as follows:
“4/7/2012e; njjp ehd; ePjpkd;wj;jpy; mspj;j Kjy; tprhuizapd;
nghJ 5/11/2009e; njjp ehd; filapy; tpahghuk;
bra;Jbfhz;oUe;jnghJ khiy 3/15kzpf;F M$u; vjphpa[k;.
,we;Jnghd $hdfpuhkk;kht[k; te;J kht[ t';fpf;bfhz;L
nghdjhf brhy;ypapUf;fpnwd; vd;why; rhpjhd;////”
The contrary versions make this witness unreliable.
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9. (a) As far as PW6 is concerned, we find that it is his version that he
saw the appellant with a Bill Hook (bfhLths;) running out of the house of
the deceased on the day of occurrence and immediately, he rushed to the
house and saw the deceased lying dead. However, we find that PW6 has not
lodged any complaint or informed anyone that he saw the accused with Bill
Hook (bfhLths;). If PW6 had seen the accused with the Bill Hook, there is
no reason why he has not lodged a complaint immediately. As stated earlier,
the complaint was lodged by the son of the deceased at 7.00pm, to the police.
(b) PW6 would also state that he informed the son of the deceased i.e
PW1 about the occurrence. However, it is seen from the evidence of PW1
that there is no reference to PW6 informing him about the occurrence. PW1
has stated that one Suresh Babu (PW1's uncle) informed him about the
occurrence. However, he has not been examined by the prosecution.
Therefore, we find that the evidence of PW6 is unreliable and not acceptable
as regards the circumstance of last seen.
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10. From the oral evidence, it is seen that PW1 was made to believe that
his mother was murdered by the accused. But none of the witnesses including
Suresh Babu, who have given such information to the PW1 were examined.
11. Apart from the above, there are no other circumstance to establish
the prosecution. We also see that the prosecution case as regards the manner
in which the appellant was arrested appears to be doubtful. PW13 had stated
that he went along with the VAO [PW5] and the Village Assistant for a
routine vehicle check up and at that time, the accused came in her two
wheeler and she was arrested. There was no necessity for PW13 to take the
VAO (PW5) and the Village Assistant for the said routine vehicle check up.
Further the evidence of PW5 is that the investigation officer-PW13 informed
him that he was going to arrest the accused and called him and his Assistant
Kumaresan, to assist him. This version is contrary to the investigation
officer's evidence that they arrested the accused during a routine vehicle
check up. Therefore, the version of PW13 as regards the arrest of the
appellant also cannot be believed and therefore, the alleged confession after
arrest and the consequential recovery, also cannot be believed.
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12. (a) As stated earlier we find that none of the witnesses have spoken
about the alleged motive. It is the prosecution case that the appellant had a
grudge against the deceased, since, she was responsible for her father's second
marriage and abandoning his first wife, who was the mother of the
appellant/accused. Further, the father of the appellant has not been examined
as a witness. Though, a document purporting to be a letter of the father of the
appellant/accused, marked as Ex.D1 shows that the father suspected the
involvement of the appellant/accused, the said document cannot be looked
into, in the absence of the author of the said letter viz., father of the
appellant/accused, being examined in Court. It is also not known as to why
the defence had marked this document. In the said letter, the father of the
appellant/accused is said to have stated that the motive is incorrect, which had
probably prompted the defence to mark the said document. However, we are
of the view that the said document cannot be looked into as it has no
evidentiary value.
(b) It is settled law in a case based on circumstantial evidence the
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prosecution has to establish all the circumstances conclusively and the
circumstances must form a complete chain. In this regard, it will be useful to
refer to the observations of the Hon'ble Supreme Court made in Sharad
Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622), which is
extracted hereunder:
“153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal distinction
between 'may be proved' and 'must be or should be proved' as was
held by this Court in Shivaji Sahabrao Bobade @ Anr. v. State of
Maharashtra (1973 AIR 2622) where the following observations
were made:
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between 'may
be' and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis
of the guilt of the accused, that is to say. they should not be explainable on any
other hypothesis except that the accused is guilty,
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(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be
proved, and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the accused
and must show that in all human probability the act must have been done by the
accused.
These five golden principles, if we may say so, constitute the panchsheel of
the proof of a case based on circumstantial evidence.”
(c) Therefore, this Court is of the view that the circumstances relied
upon by the prosecution have not been conclusively established and in any
case, they do not form a complete chain so as to rule out any other hypothesis,
except pointing out to the guilt of the appellant.
13. For the aforesaid reasons, we are of the view that the judgment of
conviction and sentence passed in S.C.No.93 of 2010, dated 14.11.2016 on
the file of learned Additional District and Sessions Judge, Hosur, is liable to
be set aside.
14. In the result, this Criminal Appeal is allowed and the appellant is
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acquitted of the charge u/s.302 IPC. The conviction and sentence passed in
S.C.No.93 of 2010 on the file of the learned Additional District and Sessions
Judge, Hosur, vide judgment dated 14.11.2020, are set aside. Fine amount, if
any, paid by the appellant shall be refunded. Bail bond, if any, executed shall
stand discharged.
15. Mr.K.Ethirajalu, learned counsel appointed as Amicus Curiae by
this Court on 20.11.2023, is entitled to the scheduled fees.
(S.S.S.R.,J.) (S.M.,J.)
11.12.2023
Index : yes/no
Neutral citation : yes/no
ars
To
1. The Additional District and Sessions Judge,
Hosur.
2. The Inspector of Police,
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Tally Police Station,
Krishnagiri District
3. The Public Prosecutor,
High Court, Madras
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S.S.SUNDAR,J.
AND
SUNDER MOHAN,J.
ars
(1/2)
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11.12.2023
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