Madras High Court
Kala vs State Of Tamil Nadu on 12 October, 2023
Crl.A.No.449/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 12.10.2023
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
CRL.A.No.449/2022
1]Kala
2]M.G.@Gandhi .. Appellants/A1
& A2
Vs
State of Tamil Nadu
represented by
The Inspector of Police
Kambainallur Police Station.
Dharmapuri District. .. Respondent/
Complainant
******
Appeal filed under section 374 [2] Cr.P.C., against the conviction
imposed in the judgment dated 03.03.2022 in SC.No.189/2014 on the file of
the learned Additional District and Sessions Judge, Dharmapuri.
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For Appellants : Mr.N.Manoharan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
JUDGMENT
[Judgment of the Court was delivered by SUNDER MOHAN, J.]
(1)The appellants who are arrayed as A1 and A2 have come forward with
the above appeal challenging their conviction and sentence imposed by
the learned Additional Sessions Judge, Dharmapuri, by the judgment
dated 03.03.2022 in SC.No.189/2014 convicting each of the appellants
for the offence u/s.302 IPC and sentencing each of them to undergo life
imprisonment and to pay a fine of Rs.5,000/- each and in default, to
undergo two years rigorous imprisonment.
(2)The prosecution case in a nutshell is to be narrated here under:-
(a) The deceased Mahendran and A1-Kala are husband and wife. A2-
Gandhi is alleged to be the paramour of A1. The deceased and A1
had got four children and they were residing at Mallammapuram. The
deceased Mahendran is a drunkard and a spendthrift and he was
aware of the illicit intimacy between A1 and A2. It is also the case of
the prosecution that the deceased had given his ancestral property to
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Crl.A.No.449/2022
his sister/wife of PW1. In this regard often quarrel arose between the
spouses and the deceased left his wife and children and was staying
separately at Pappanur. Hence, A1 and her children, who are
juveniles, decided to do away with the life of the deceased.
(b) On the fateful day of occurrence, i.e., on 04.08.2009 at about 8.00
p.m., A1 informed the deceased over phone that their daughter
Menaka was suffering from brain fever and hence, the deceased went
to Mallammapuram to see his daughter. On 05.08.2009, during night
hours, when the deceased was sleeping in front of the house, due to
previous enmity, the juveniles caught hold of their father/deceased,
while A1 inflicted cut injuries upon the deceased using a Koduval
[M.O.1] on his face, chin and neck. A2 also inflicted injuries on the
deceased with the same Koduval [M.O.1] on his face and chin. The
deceased died due to shock and hemorrhage. PW1-Raja, husband of
the sister of the deceased was informed about the occurrence over
phone on 06.08.2009 at about 11.00 a.m. and he reached the scene of
occurrence at about 12.00 Noon and he found the deceased lying dead
with cut injuries.
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(c) Thereafter, P.W.1 went to the respondent police and lodged a
complaint under Ex.P1. P.W.21-Sub Inspector of Police attached to
the respondent police, on receipt of the complaint under Ex.P.10,
registered a case in Crime No.264/2009 for the commission of the
alleged offences u/s.147, 148, 302 IPC. Ex.P.10 is the Express FIR.
He sent the same to the Magistrate and to the higher officials
concerned.
(d) Mr.Jayamohan, Inspector of Police, on receipt of Ex.P.10 [FIR], went
to the scene of occurrence. He prepared the Observation Mahazar
[Ex.P.4] and a rough sketch [Ex.P.14] in the presence of the
witnesses. He held inquest on the dead body of the deceased and
prepared the Inquest Report. Ex.P.15 is the Inquest Report. The
Investigating Officer also collected blood stained cement plaster
piece [M.O.4] ; sample cement plaster piece [M.O.5] ; blood stained
white colour shirt [M.O.6] ; blood stained dhoti [M.O.7] under the
Mahazar [Ex.P.12]. The blood stained Koduval [M.O.1] was seized
under a Mahazar [Ex.P.13]. Thereafter, he sent the dead body for
postmortem through the police Constable.
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(e) Dr.Senthilkumar, P.W.17, was working as Assistant Surgeon at the
relevant point of time in the Government Hospital, Harur. He
conducted postmortem on the dead body of the deceased on
07.08.2009 at about 4.00 p.m. as per the requisition from the police
constable. He found the following injuries:-
EXTERNAL INJURIES:-
1]Cut injury extending from back of neck right
side passing through left ear, left maxillary region, right
nose, right maxillary region, deep cut injury 40x3x9cm,
blood ooze from the wound.
2]Cut injury extends from back of neck left side,
left mandible region 20x3x4cm.
3]Cut injury extending left of the neck to the
centre of the neck 10x3x3cm.''
Ex.P.6 is the Postmortem Certificate wherein the doctor, after
obtaining the Bone Case Report under Ex.P7, has opined that the deceased
would appear to have died of shock and hemorrhage due to cut injury of
vital organs. Ex.P8 is the Final Opinion of P.W.17.
(f) Mr.Jayamohan, the investigating officer continued his investigation
and examined the other witnesses ; recorded their statements. The
first accused surrendered before the Judicial Magistrate, Harur on
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7.8.2009 and remanded to Judicial custody. Mr. Jaymohan the
investigation officer took police custody of the first accused and
recorded her confession statement on 21.8.2009. He arrested the
second accused and the juveniles alleged to be involved in the
occurrence on 7.9.2009. Pursuant to the confession statement of
A2/M.G.@ Gandhi, the admissible portion of which is marked as
Ex.P.11, he recovered M.O.1-Billhook. He also examined the doctor
[P.W.17] who has conducted the postmortem and received the Post
Mortem Certificate [Ex.P.6]. He has given a requisition to the
Magistrate Court for sending the material objects for chemical
examination. After the receipt of the Biological Report [Ex.P.16] and
Serological Report [Ex.P.17] and after completion of the
investigation, he handed over the case file to P.W.22 for further
investigation.
(g) P.W.22, Mr.Anbazhagan, the Inspector of Police, continued the
investigation and recorded the statements of P.Ws.14, 15, 16,18, 19,
20 and 21 individually. On completion of investigation, he filed
separate charge sheets against both the accused for the offence
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u/s.302 IPC and against the juveniles.
(h) The prosecution in order to bring home the charge against the
accused, examined P.Ws.1 to 22, filed Exs.P.1 to 20 beside marking
M.Os.1 to 8.
(3)When the accused were questioned under section 313 Cr.P.C., in respect
of the incriminating materials appearing against them through the
evidence adduced by the prosecution, the accused have come forward
with the version of total denial and they have stated that they have been
falsely implicated in the case. They have not chosen to examine any
witness nor marked any documents on their side.
(4)The learned Trial Judge, on consideration and appreciation of the
evidence adduced by the prosecution, has found the accused / appellants
guilty and convicted and sentenced them as stated above. Hence, the
present appeal.
(5)This Court has given its careful and anxious consideration to the rival
contentions put forward by either side and also thoroughly scrutinised the
entire evidence available on record and perused the impugned Judgment
of conviction.
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(6)It is seen that the prosecution has established the fact through the
evidence of the P.W.17, the postmortem doctor and the other evidence on
record that the deceased died due to homicidal violence. The said fact is
not disputed by the appellants herein.
(7)The next question is whether the appellants and the juveniles said to be
involved were responsible for causing the death of the deceased.
(8)It is the case of the prosecution that the complaint given by PW1, Exhibit
P1 led to the registration of FIR (Ex.P10). PW1 had stated in the
complaint that he came to know around 11 am on 6.8.2009 that the first
accused along with her minor children caused the death of the deceased;
that he went to the scene of occurrence at about 12 noon; that he found
the deceased dead with cut injuries; that he came to know that the second
accused had assisted the other accused in causing the death of the
deceased; and that the son P.W.2 had dropped the deceased at the house
of the accused on 05.08.2009 and returned the same day to his house.
The FIR was registered at 13.00 hours and sent to the learned Magistrate
at 5.30pm on the same day. P.W.1 in his deposition before the Court
would however state that P.W.2 after dropping the deceased had stayed in
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the house of the accused and P.W.2 informed him the next day after the
registration of the FIR that he (P.W.1) witnessed the occurrence. P.W.1
had not explained as to how he came to know that the deceased was done
to death by the accused when he gave the complaint. Even according to
P.W.1, P.W.2 informed him that he witnessed the occurrence after he had
lodged the complaint. P.W.1 had not stated as to who told him about the
occurrence over phone. Be that as it may. It is the evidence of P.W.13 the
Village Administrative Officer that he had gone to the scene of
occurrence at 11.00 a.m. at 06.08.2009 on information that the deceased
was found dead. He would further state that when he went to the scene of
occurrence there was no one present there. Thereafter he went to the
police station and gave information to the police. It is seen that the
prosecution had not placed the said information on record. It is the
version of P.W.13 VAO that only on his information the police came to
know of the occurrence. Thus we find that the prosecution has suppressed
the FIR given to the Police by the Village Administrative Officer.
Further, as stated earlier it is not clear as to how P.W.1 came to know that
the accused were responsible for the death. P.W.1 in his deposition before
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the Court had taken a contrary stand stating that P.W.2 after dropping the
deceased at the house of the accused had stayed there along with the
deceased and witnessed the occurrence. This version is an improvement
and has been made to project P.W.2 as an eyewitness to the occurrence
which is highly improbably going by the versions of P.W.1 and P.W.2.
(9)P.W.2 is the sole eyewitness to the occurrence according to the
prosecution. The conduct of P.W,2 and his version does not inspire
confidence to say the least. P.W.2 would offer an explanation in his
deposition before the Court for not informing about the occurrence
immediately either to the Police or to his father P.W.1. He would state
that he was threatened by the accused that he would be killed if he
revealed the occurrence to any person and therefore, he went to a village
called Eechampadi and thereafter went to the Police Station and there he
met his father-P.W.1. The evidence of P.W21 is improbable. His conduct
is opposed to normal human conduct. It is not his case that he was
confined by the accused. He had gone to another village and thereafter
went to meet his father. Therefore, this Court is of the view that P.W.2
could not have been an eyewitness which is fortified by the version of
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P.W.1 in the complaint, who had stated that P.W.1 went to drop the
deceased at the house of the accused and had returned to his house on the
same day, thereby ruling out the presence of P.W.2 at the time of the
alleged occurrence.
(10)Apart from the fact that P.W.1 and P.W.2 cannot be believed as stated
earlier the first information given by the VAO-P.W.13 to the Police has
been suppressed. Further, this court is unable to comprehend as to why
the assistance of dog squad led by P.W.18 was sought for by the
prosecution if P.W.2 was really an eyewitness and had named the
accused during the investigation. It is also admitted that the sniffer dog
used by the dog squad did not give any clue about the identity of the
persons involved in the crime.
(11)Apart from the evidence of P.W.1 and P.W.2 the other witnesses
examined by the prosecution are of no avail to the prosecution case.
P.W.6, to whom P.W.2 is said to have informed about the occurrence
turned hostile. P.W.7 the son in law of the accused and P.W.11 the
witness to the confession of the first appellant also turned hostile. The
other witnesses had either turned hostile or are hearsay witnesses. P.W.16
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a finger print expert had deposed that he could not get any finger print
when he visited the scene of occurrence on 06.08.2009.
(12)Thus from the narration of the above facts, it can be seen that the
prosecution has failed to establish that the appellants and the other
juvenile accused caused the death of the deceased. The learned
Additional public prosecutor would contend that since the occurrence
took place at the house of the accused, they owe an explanation as to how
the occurrence took place as the fact is especially within their knowledge
in terms of Section 106 Indian Evidence Act. Apart from the testimony of
PW.1 and P.W.2, whose versions are doubtful and unreliable, there is no
evidence to show that the accused lived in the place where the body of
the deceased was found. The accused had suggested to P.W.1 that he was
responsible for causing the death through his henchmen and thereafter
placing the body of the deceased outside the house of the accused. In
order to further show that P.W.1 is not a reliable person the defence had
suggested to him that on 10.07.2017 P.W.1 through his henchmen had
attempted to cause the death of the first appellant and had caused the
death of one of the minor children by name Vetrivel and an FIR and an
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investigation was pending though, P.W.1 was not named in the FIR.
However, these are only suggestions made by the accused during the
cross examination. Be that as it may. In the absence of any conclusive
evidence on the side of the prosecution to establish the guilt of the
accused this Court is of the view that merely because the accused
remained silent , their guilt cannot be presumed. Thus, this Court is of the
view that it is not safe to render a finding of guilt as against the accused
since there are glaring contradictions in the evidence of the witnesses and
serious infirmities in the prosecution case.
(13)In view of the above said infirmities, inconsistencies and
improbabilities, we are constrained to come to the inevitable conclusion
that the impugned Judgment of conviction is unsustainable.
(14)Accordingly, the criminal appeal is allowed and the conviction and
sentences imposed on the appellants by the learned Additional District
and Sessions Judge, Dharmapuri., dated 03.03.2022 in SC.No.189/2014
are hereby set aside.
(15)It is reported that the appellants are in jail. Hence, the
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appellants/accused are directed to be set at liberty forthwith, if they are
not required in connection with any other case. The fine amount, if any
paid by the appellants shall be refunded to them.
[SSSRJ] [SMJ]
12.10.2023
Index : Yes / No
Internet : Yes / No
AP
To
1. The Additional District and Sessions Judge,
Dharmapuri.
2. The Inspector of Police
Kambainallur Police Station,
Dharmapuri District.
3. The Public Prosecutor
High Court, Chennai.
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Crl.A.No.449/2022
S.S.SUNDAR,J.
AND
SUNDER MOHAN, J.
AP
Crl.A.No.449/2022
12.10.2023
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