Madras High Court
Unknown vs The Inspector Of Police on 25 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
2024:MHC:3633
Crl.A.(MD)No.381 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 14.10.2024
PRONOUNCED ON : 25.10.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.381 of 2023
and
Crl. MP(MD)No.9174/2024
Selvi ... Appellant/A1
Vs.
The Inspector of Police,
Usilampatti Nagar Police Station,
Madurai District.
(in Cr.No.440 of 2011) ...Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to call for the entire records connected to the judgment in
S.C.No.131 of 2012 on the file of the VI Additional District and Sessions
Court, Madurai, dated 09.10.2013 and set aside the conviction and sentence
imposed against the appellant.
1/39
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Crl.A.(MD)No.381 of 2023
For Appellant : Dr.R.Alagumani
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
JUDGMENT
(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)
The first accused Selvi in S.C.No.131 of 2012 who had been
convicted for the offence punishable under Section 302 IPC and sentenced
to undergo life imprisonment and fine of Rs.1,000/-, in default, to undergo 6
months rigorous imprisonment by judgment, dated 09.10.2013, by the
VI Additional District and Sessions Court, Madurai, has filed the present
Criminal Appeal.
2. It must be stated that totally eight (8) accused faced trial
before the trial Court and apart from this appellant /A1, A2, A3, A4, A5, A6
and A7 were also convicted for the substantial offence punishable under
Section 302 IPC and sentenced to life imprisonment. The 8th accused was a
juvenile offender.
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3. Questioning that conviction and sentence, A4, A5 and A7
had filed Crl.A.(MD)No.332 of 2013 and A6 had filed Crl.A.(MD)No.61 of
2014. By a common judgment dated 25.05.2015, the conviction and
sentence had been confirmed by a Co-ordinate Bench of this Court.
Thereafter, A3, A4 and A5 had independently filed Criminal Appeals before
the Hon'ble Supreme Court. They had been acquitted of all the charges. A6
had also filed Criminal Appeal before the Hon'ble Supreme Court and
though it is pending, A6 had been granted bail. A2 had died and therefore,
the charges had abated. There is no information about A7.
4. It is the case of the prosecution that the present appellant /A1
was the wife of the deceased. It is contended that she had developed an
intimate relationship with A2. It is further contended that in furtherance of
the said relationship the accused had conspired to commit the murder of the
deceased and accordingly, on 27.07.2011 in the early morning at 2.00 a.m.,
it is stated that all the eight accused had entered into the house of A1 and
the deceased and had committed the murder of the deceased.
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5. In this connection, P.W.1 Lakshmi, the mother of the
deceased had given a complaint which was marked as Ex.P.1. On the basis
of the said complaint, P.W.17 Sub Inspector of Police at Usilampatti Town
Police Station had registered FIR in Crime No.440 of 2011 for the offences
punishable under Sections 120(B) and 302 IPC. In the said FIR, the
appellant-Selvi and A2-Karikalan were named. The FIR was registered at
03.30 a.m., on 27.07.2011 and had been received by the Judicial Magistrate
at 05.20 a.m., on the same day/ 27.07.2011. On conclusion of investigation
by P.W.18 Aundiappan, Inspector of Police, final report was filed before the
District Munsif – cum – Judicial Magistrate No.I, Usilampatty and taken
cognizance as PRC.No.21 of 2011. Since the offence under Section 302
IPC was triable exclusively by the Court of Sessions, the case was
committed to the Principal District and Sessions Court at Madurai. It was
taken on file as S.C.No.131 of 2012 and made over to the VI Additional
District and Sessions Court, Madurai for trial.
6. The following charges were framed against the accused:
(i) against A1 & A2 for the offence
punishable under Section 120(B) IPC;
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(ii) against A2, A3, A5, A6 & A7 for the
offence punishable under Section 449 IPC;
(iii) against A1, A2, A3, A4, A5, A6 &
A7 for the offence punishable under Section
302 IPC;
(iv) against A4 for the offence
punishable under Section 449 r/w.120(B) IPC.
7. The accused denied the charges and claimed to be tried.
Accordingly, the prosecution was called upon to prove the charges. The
prosecution examined P.W.1 to P.W.18 witnesses and marked Ex.P1 to
Ex.P37 documents. The prosecution also produced M.O.1 to M.O.52
material objects.
8. On conclusion of evidence on the side of the prosecution, the
incriminating portions were put to the accused. Their statements were
recorded. The accused did not examine any witnesses not marked any
documents.
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9. As stated above, on conclusion of trial by judgment, dated
09.10.2013, the accused were convicted for the substantial offences
charged. This Criminal Appeal had been filed by A1 questioning that
conviction and consequent sentence. A2 had died and therefore, the charges
against him had abated. A3, A4 and A5 had been acquitted by the Hon'ble
Supreme Court. The Criminal Appeal filed by A6 is pending before the
Hon'ble Supreme Court, but A6 had been released on bail. There are no
particulars available relating to A7. A8, the juvenile offender had been tried
separately.
10. P.W.1-Lakshmi was the mother of the deceased Velu. He
was residing in Nethaji Nagar at Usilampatti. He was doing centering work.
A1-Selvi was his wife. She had begun a relationship with A2-Karikalan.
This was objected to by the deceased. A1 threatened the deceased that she,
along with A2 would murder him. P.W.1 stated that the deceased informed
her that A1 and A2 had tried to run him over by a car. P.W.1 further stated
that she came to the house of her son and when she came there she found
the dead body of her son with injuries all over the body. She had been
informed by P.W.8-Rajangam. She stated that A1, however, was standing
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very calmly with flowers in her head and kumkum in her forehead. P.W.1,
accused her of murdering the deceased. She had given the complaint
Ex.P.1.
11. P.W.8 Rajangam in his evidence stated that around 02.00 to
02.15 a.m., on 27.07.2011, P.W.5 Divya, the elder daughter of the deceased
and A1 called him over phone and stated that her father had been murdered.
He then informed this to the parents of the deceased and they all reached the
house of the deceased. He stated that A1 was standing without showing any
emotion.
12. P.W.5 Divya, the elder daughter of the deceased and A1
who was studying 9th standard stated that on 27.07.2011 in the early
morning at 02.00 a.m., on hearing some noise, she knocked at the door of
her room. After some time, her mother /A1 opened the door. When she
went to the other room she saw her father lying dead. She stated that A1
was standing without showing any emotion. She then informed P.W.7
Rajangam. She further stated that about 20 days prior to the incident, the
deceased/father informed her that A1 and A2had tried to run him over by a
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car. She further stated that her mother had an illegal relationship with A2,
which was objected to by her father. She further stated that her father
informed to her that her mother/A1 and A2 had threatened that they would
kill him.
13. Prosecution also examined P.W.7 Monisha, the other
daughter of the deceased and A1. In her evidence, she stated that she and
her sister and brother were sleeping in the inside room and that her parents
were sleeping in the front room of the house. In the early morning at
02.00 a.m., she heard a noise and she and her brother knocked at the door.
After sometime, her mother /A1 opened the door. She noticed her father
lying dead. She further stated that A1 was standing there without any
emotion. She stated that A2 used to come home often and her mother used
to cook food for him. She also stated that A3, A4 and A5 had also come
home with A2.
14. Prosecution examined P.W.2-Prem Rose Selvi and P.W.3-
Chinnan who are neighbours to speak about the fact that A1 and A2 had
been in relationship. Prosecution also examined P.W.4-Sekar brother of the
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deceased who also spoke about the same fact. Prosecution further examined
P.W.9 who spoke about the presence of A2, A,3, A4, A5, A6 and A7
outside the house late at night on 26.07.2011. Prosecution also examined
P.W.10-Perumal who spoke about the alleged conspiracy among the
accused.
15. Consequent to the registration of the complaint Ex.P.1,
P.W.17-Chellapandi, the Sub Inspector of Police had registered FIR-Ex.P.
24 at 03.30 a.m., on 27.07.2011 in Crime No.440 of 2011 for the offences
punishable under Sections 120(B), 302 IPC. A1 and A2 were named in the
FIR. In his evidence P.W.17 stated that he informed this fact to the
Inspector of Police through phone and went to the scene of crime and
handed over the copy of the FIR to the Inspector of Police at 04.00 a.m. He
also made arrangements for the original FIR and complaint to be handed
over to the concerned Judicial Magistrate through Police Constable,
Mayakannan, who was examined as P.W.13 and stated that the FIR and
complaint were handed over to the Judicial Magistrate No.I, Usilampatti
at 05.20 a.m.
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16. The investigation was then taken over by P.W.18
Aavudaiappan, the Inspector of Police. In his evidence, he stated that he
went to the scene of crime at 04.00 a.m., and in the presence of witnesses
Andi, Village Administrative Officer and Anbuchezhian ( not examined), he
prepared observation mahazar Ex.P.2 and rough sketch Ex.P.25. He then
seized the green, blue and sandalwood coloured mats – M.O.1 (two
numbers), one pillow with bloodstain-M.O.2, another bloodstained pillow-
M.O.3, another bloodstained pillow with pillow cover-M.O.4, blue and
orange colour bedsheet-M.O.5, cement piece with bloodstain-M.O.6,
cement piece without bloodstain-M.O.7 and two cell phones – M.O.8 and
M.O.9 under Seizure Mahazar Ex.P.3. He then conducted inquest over the
dead body in the presence of witnesses and panchayathars. The inquest
report was marked as Ex.P.26.
17. He then also collected bloodstained sand and sand without
bloodstain in the pathway near the house which were produced as – M.O.10
and M.O.11. He then recorded the statements of Lakshmi – P.W.1, Prem
Rose Selvi-P.W.2, Karuppaiah Thevar (not examined), Rajangam – P.W.8,
Chinnan – P.W.3, Andi – P.W.11. He also recorded the statements of Sekar
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– P.W.4, Veeramani (not examined), Arivu – P.W.9, Divya – P.W.5,
Monisha – P.W.7, Mayakannan – P.W.13, Chellapandi, Sub Inspector of
Police – P.W.17.
18. He then took into custody of the accused and recorded their
confession and statements. The admissible portion of the confession of A2
was marked as Ex.P.5 and the admissible portion of the confession of A3
was marked as Ex.P.6 and that of A4 was marked as Ex.P.7. The admissible
portion of the confession of A1 was marked as Ex.P.11. The admissible
portion of the confession of A6 was marked as Ex.P.13 and that of A5 was
marked as Ex.P.14 ad that of A7 was marked as Ex.P.19. On the basis of
said confession statements, he also recovered a knife - M.O.12,
bloodstained lungi and shirt – M.O.13 and M.O.14, cash of Rs.16,000/- –
M.O.15, a dhoti and shirt – M.O.16 and M.O.17, cash of Rs.2,500/- – M.O.
18, another lungi and shirt and cash of Rs.200/- – M.O.19, M.O.20 and
M.O.21, Ambassodar car and auto – M.O.22 and M.O.23, the clothes of A1
which were bloodstained – M.O.24, M.O.25 and M.O.26, another cell phone
– M.O.27, cash of Rs.1,04,000/- – M.O.28, silver and gold jewellery – M.O.
29 to M.O.33, another knife – M.O.34, cash of Rs.30,500/- – M.O.35,
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bloodstained clothes – M.O.36 and M.O.37, tata Ace vehicle – M.O.38,
bloodstained knife – M.O.39, cash of Rs.17,000/- M.O.40, another knife –
M.O.41, 4 cell phones – M.O.42 to M.O.45, cash of Rs.17,500/- – M.O.46,
lungi of the deceased – M.O.47 and further jewellery M.O.48 to M.O.52.
He forwarded the material objects under Form-95 to the Court. He then
recorded the statements of Dr.Parimala Selvi – P.W.12 who conducted post
mortem and had issued postmortem certificate Ex.P.20.
19. The following injuries were found on the body of the
deceased :
i) cut injury over the neck
ii) cut injury over the thumb
iii) cut injury over the left index finger
iv) cut injury on the right middle finger
v) cut injury on the right littler finger
vi) cut injury on the left palm
vii) cut injury on the left middle finger
viii) cut injury on the left little finger
ix) simple wound on right wrist
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x) cut injury on the right cheek
xi) stab injury on the right side of the chest
xii) stab injury around the abdomen
xiii) cut injury on the back of the right ear.
20. The bloodstained material objects were also forwarded for
chemical examination and the reports were marked as Ex.P.21 to Ex.P.23.
Human blood with 'o' group was found on the pillow, blanket and the lungi
worn by the deceased.
21. P.W.18 then recorded the statement of P.W.16 Vijayendran,
the Junior Scientific Officer, who conducted the chemical examination test.
He then filed final report before the Court charging the accused A1 to A7
with commission of offences punishable under Sections 120(B), 449 and
302 IPC.
22. As stated above, this final report was taken cognizance as
P.R.C.No.21 of 2011 by the Judicial Magistrate No.I, Usilampatti who after
completing formalities, had committed the case to the Court of Sessions. It
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was taken on file as S.C.No.131 of 2012 and made over to the VI Additional
District and Sessions Court, Madurai for trial.
23. The following charges were framed against the accused:
(i) against A1 & A2 for the offence
punishable under Section 120(B) IPC;
(ii) against A2, A3, A5, A6 & A7 for the
offence punishable under Section 449 IPC;
(iii) against A1, A2, A3, A4, A5, A6 &
A7 for the offence punishable under Section
302 IPC;
(iv) against A4 for the offence
punishable under Section 449 r/w.120(B) IPC.
24. On conclusion of trial, the accused were convicted by
judgment dated 09.10.2013 and for the substantial offence under Section
302 IPC, sentenced to undergo life imprisonment.
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25. Questioning such conviction and sentence A1 has filed the
present Criminal Appeal. As stated above, A2 had died and the Hon'ble
Supreme Court had acquitted A3, A4, A5 of all charges. The Criminal
Appeal filed by A6 is pending before the Hon'ble Supreme Court, but bail
had been granted to A6. There is no information about A7. A8 was a
juvenile offender.
26. Heard arguments advanced by Dr.R.Alagaumani, learned
counsel for the appellant and Mr.A.Thiruvadi Kumar, learned Additional
Public Prosecutor for the respondent.
27. Dr.R.Alagumani, learned counsel for the appellant has
pointed out that there were no eyewitnesses for the offence of murder
charged against the appellant/A1 herein. The only evidence produced by the
prosecution is that when P.W.5 and P.W.7, on hearing some noise, knocked
at the door at 02.30 a.m., on 27.07.2011, this appellant/A1 opened the door
and they found their father lying dead with cut injuries.
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28. The learned counsel stated that the case of the prosecution
is not that this appellant/A1 had caused the fatal injuries to the deceased. It
is the case of the prosecution that A2 to A7 and also A8 the juvenile had
entered into the house and had caused the injuries. No weapons were
recovered from this appellant/A1. The learned counsel pointed out that the
Hon’ble Supreme Court had disbelieved the evidence of conspiracy and had
therefore, acquitted A3, A4, A5 and bail had also been granted to A6. A2
had died and therefore, the charges had abated.
29. It was thus pointed out that there is no surviving evidence
about conspiracy. The first charge against this appellant/A1 was that she
had been in conspiracy with A2 but owing to the death of A2 and no
evidence produced independently, that though this appellant /A1 and A2
could have been in relationship, they had taken a decision to murder the
husband of this appellant/A1, the charge under Section 120(B) IPC naturally
fails.
30. The learned counsel further pointed out that the 2nd charge
against this appellant/A1 was an independent charge under Section 302 IPC.
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Again, there being no overt act alleged against this appellant/A1, the
learned counsel stated that the appellant could not be convicted for the
offence under Section 302 IPC, particularly, when the prosecution had
specifically arrayed A2 to A7 and A8 the juvenile accused for having
caused the injuries which led to the death of the husband of A1.
31. The learned counsel further pointed out that in the absence
of credible evidence relating to the actual commission of offence by this
appellant, the judgment of conviction will have to be necessarily set aside.
32. Mr.A.Thiruvadi Kumar, learned Additional Public
Prosecutor, however, contested these statements made by the learned
counsel for the appellant. According to the learned Additional Public
Prosecutor, when A1 opened the door, and P.W.5 and P.W.7 entered into
the room where the dead body of their father was lying with cut injuries, the
only person who was present, was this appellant/A1. It was, therefore, stated
that this appellant/A1 should explain the circumstances under which her
husband had suffered the cut injuries. It was knowledge known only to her
and therefore, she had a duty to explain under Section 106 of the Indian
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Evidence Act, how the injuries were caused.
33. The learned Additional Public Prosecutor further pointed
out that the prosecution had proved motive by examining direct witnesses
who had witnessed the relationship between A1 and A2. It was also on
record that about 20 days prior to the incident, A1 and A2 had tried to run
over the deceased in a car.
34. The learned Additional Public Prosecutor stated that the
fact that A3, A4 and A5 have been acquitted by the Hon'ble Supreme Court
would not affect the evidence produced by the prosecution that this
appellant/A1 had motive to commit the murder. The learned Additional
Public Prosecutor also pointed out that the prosecution had proved arrest
and recovery. He also argued that P.W.5 and P.W.7, who spoke about the
relationship between A1 and A2, were natural witnesses, since they were
daughters of this appellant /A1. He, therefore, urged that this Court should
uphold the conviction against the appellant herein /A1.
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35. We have carefully considered the arguments advanced and
perused the material records.
36. The appellant herein/A1 was the wife of the deceased and
mother of P.W.5 and P.W.7. They were living together. Unfortunately, it is
alleged that A2 entered into the privacy of the family and shattered their
peace. It is alleged that A1 and A2 developed an intimate relationship. This
fact had been spoken to by not only P.W.1, P.W.2, P.W.3 and P.W.4, but,
more importantly, also by P.W.5 and P.W.7, the daughters of the deceased
and this appellant/A1.
37. The case of the prosecution rested on the presumption that
the deceased had died, since the appellant/A1 was of the opinion that he was
obstructing her relationship with A2. It is the further case of the prosecution
that in furtherance of that intention and with common object, A1 and A2
had entered into a conspiracy to kill the deceased/husband of this
appellant/A1. It is the further case of the prosecution that therefore, they
had engaged A3 to A7 and A8 the juvenile, to commit the murder.
Unfortunately, the evidence adduced by P.W.9 and P.W.10 relating to the
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presence of A3 to A7 and A8, the juvenile accused on the night of the
incident had been disbelieved by the Hon'ble Supreme Court. Similarly, the
evidence of P.W.10 who spoke about conspiracy among the accused persons
had also been disbelieved by the Hon'ble Supreme Court.
38. The Hon'ble Supreme Court had acquitted A3 who had
filed Crl.A.No.198 of 2019 and A4 who had filed Crl.A.No.199 of 2019. In
the course of such acquittal, while examining the evidence of P.W.9 and
P.W.10 it had been had held as follows:
"6. The prosecution case against the accused
appellants herein is built on circumstantial evidence. The
sum total of the circumstances relied by the prosecution
against the accused appellants herein are as follows:
(i)Arivu (P.W.9), a mason by profession,
had testified that at about 1.30 a.m. on the date
of occurrence he had finished work and while
returning he had seen two accused appellants
along with Accused Nos. 5, 6, 7 and 8 alighting
from the TATA ACE vehicle outside the house
of Velu (deceased);
(ii) Perumal (P.W.10) had deposited that
at about 6.00 p.m. on 26th July, 2011 (sic) i.e.
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a day prior to the day of occurrence he had
seen three (03) accused engaged in a
conversation about terminating the life of some
other person. P.W. 10 had further deposed that
at about 9.00 p.m. on the same day he had seen
seven (87) accused, who were identified by him
for the first time in the Court.
(iii). Fifteen (15) days prior to the
occurrence, a First Information Report (FIR)
was lodged by the deceased that a white
Ambassador Car belonging to the Sasikumar
(Accused No.4) had made an attempt to run
him over. The investigation of the case was
pending.
7. P.W.9, the mason, is a chance witness. The
defence had put a suggestion to P.W.9 that he is a cousin
of the deceased and there was animosity between P.W.9
and Selvi (Accused No.1). That apart, even though P.W.9
had gone to console the family of the deceased on the
next day in the morning of 27th July, 2011 he did not
report, what he had claimed to have seen in the previous
night to any person including the Police. P.W.9's
testimony, that the accused appellants along with other
accused were spotted outside the house of the deceased a
little while before the incident, is a weak and shaky
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evidence given the background of facts. It is not
conclusive and reliable and would require corroboration
and affirmation from other evidence, which as noticed
below is virtually absent and is not forthcoming.
8. So far as the evidence of P.W.10 is concerned,
he is not known to the accused persons from before. His
statement regarding conversation amongst the accused
was recorded by the Police two months after the incident
and he had purportedly identified the accused in the dock
several months after the incident. He did not name any of
the accused at any point of time. The evidence of P.W.10
and his identification made by him is not safe
circumstance and evidence which can be relied upon
against the accused appellants.
9. The third circumstance, namely, filing of the FIR
by the deceased with regard to the attempt to run over by
a while Ambassador Car belonging to Sasikumar
(accused No.4) is again a rather weak and tenuous
circumstance that by itself or even in conjunction with
unreliable version by P.W.9 to lead to an irresistible and
firm conclusion that the accused Nos.3 and 4 (appellants
herein) were involved and had committed the offence."
Since the appellant has also been
10. The law relating to circumstantial evidence
would hardly need any reiteration, save and except, that
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the circumstances proved and established together must
unerringly point to the guilt of the accused which, in our
considered view, is conspicuously lacking in the present
11. We, therefore, deem it proper to allow the
appeals; set aside the conviction of the accused
appellants (Accused Nos. 3 and 4) under Section 302 IPC
and sentence of life imprisonment imposed. The accused
appellants are acquitted and we direct their release
forthwith unless their custody is required in connection
with any other case.”
39. A similar reasoning had been given, when the Hon'ble
Supreme Court had acquitted A5 who had filed Crl.A.No.1365 of 2022.
40. The Hon'ble Supreme Court had also granted bail to A6.
41. It is seen from the above discussion by the Hon'ble
Supreme Court that both P.W.9 and P.W.10 are unreliable witnesses. Both
of them had spoken about the conspiracy among the accused persons. Once
A3 to A5 had been acquitted on the ground that the theory of conspiracy
faced, naturally, the said benefit would also accrue to this appellant/ A1.
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42. The facts of the case reveal that on 27.07.2011, when P.W.
5 and P.W.7 the two daughters of A1 were sleeping in a room along with
their younger brother, they had heard a sound coming from the other room
at 02.30 a.m. They knocked at the door. A1 opened the door, after some
time. Though P.W.5 and P.W.7 stated that they saw the dead body of their
father lying with injuries, only the appellant /A1 was present at that place.
None of the other accused were present. The prosecution to bring home the
theory of offence punishable under Section 302 IPC should adduce evidence
that this accused had committed the murder of her husband. But however,
the prosecution had brought in A3 to A7 and A8 the juvenile accused as the
persons who had committed the actual murder. This would automatically
mean that the appellant/A1 herein had not committed the murder. She, at the
most could have entered into conspiracy with A3 to A7 and the juvenile
accused, A8 who committed the murder. But the witnesses who spoke about
the conspiracy namely P.W.9 and P.W.10 stood discredited by the Hon'ble
Supreme Court.
43. This leaves out only the alleged relationship between A1
and A2. There is sufficient evidence adduced that the appellant/A1 was
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actually in illicit relationship with A2. But the question before the Court is
whether an inference can be drawn that merely because there is such
evidence, this appellant/A1 who was alone found in the room had
committed the murder of her husband. The answer is vehement 'no'. There
must be a link in the chain of events. Stating that there was a relationship is
not sufficient. Evidence must be adduced that A1 and A2 conspired to kill
the husband of this appellant/A1 in furtherance to that relationship.
44. Prosecution had relied on the evidence of P.W.1 mother of
the deceased who stated that the deceased informed her that about 20 days
prior to the incident this appellant / A1 and A2 had tried to run a car over
him. Even that aspect had been examined by the Hon'ble Supreme Court
and they have termed it as a “rather weak and tenuous circumstance”.
45. The other circumstance pressed by the prosecution is the
evidence of P.W.1, P.W.5 and P.W.7 who stated that this appellant/A1 was
standing without any emotion near the dead body of her husband. This
could not be interpreted that she had committed the murder and that she had
witnessed the murder. She could also have been standing in a stupor. She
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was not agitated which would have been the natural reaction if she had
committed the offence. She would have tried to screen the offence. She
had however, opened the door for the children to come out. She had taken
sometime for it. But she did open the door. This only shows that she was not
screening anybody or anything. This attitude could also be interpreted as a
shock for her also.
46. It was pointed out by the learned Additional Public
Prosecutor that the arrest of this accused had been proved by the evidence of
P.W.11. But it must be stated that as a fact, it cannot be denied that this
appellant/A1 had been arrested, but no weapons used for the offence had
been recovered from the appellant/A1.
47. Further P.W.11 is a stock witness who had witnessed the
arrest of all the accused and the recovery of all the material objects.
48. It had also emanated, during cross examination of P.W.11
that he was not the jurisdictional Village Administrative Officer. He had
also not obtained permission from his higher officials to assist the
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Investigation Officer, during arrest and recovery and in recording of
confession. He had willingly participated in the investigation. There is no
reason given by the Investigating Officer as to why he did not take the
assistance of the jurisdictional Village Administrative Officer. This creates
a strong suspicion that P.W.11 is a stock police witness. As a matter of fact,
he admitted that fact in his cross examination. He had also stated that
separate inks had been used in the seizure mahazar. These contradictions
touch upon the facts of arrest and recovery of the material objects. It must
also be pointed out that though the dress of this appellant/A1, her phone,
cash and jewels had all been seized during the course of investigation, they
did not contain bloodstains. The weapon used for the alleged offence had
not been recovered from this appellant/A1.
49. It is thus seen that expect for the presence of this
appellant/A1 in front of the body of her dead husband, there is no evidence
linking her to the commission of the offence punishable under Section 302
IPC. There is oral evidence available so far as her relationship with A2 is
concerned. But again, it cannot be presumed that she had committed the
murder of her husband or had instigated the murder of her husband, merely
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because she was in relationship with A2. This theory falls to the ground
also because A3 to A5 had been acquitted by the Hon'ble Supreme Court.
P.W.9 and P.W.10 who had tendered evidence linking this appellant/A1
with the other accused stood discredited by the Hon'ble Supreme Court.
Therefore, viewed independently, there is no evidence at all that this
appellant /A1 committed the offence punishable under Section 302 IPC.
The trial Court had not framed charge under Section 34 IPC.
50. The learned Additional Public Prosecutor placed reliance
on the judgment of the Hon'ble Supreme Court in Rimukh Maroti Kirkan
Vs. State of Maharashtra reported in 2006(10) Supreme Court Cases 681,
for the aspect that if an offence takes place inside the privacy of a house
under Section 106 of the Indian Evidence Act, there is a burden on the
inmates of the house to give a cogent explanation as to how the crime was
committed. The learned Additional Public Prosecutor placed reliance on the
following paragraphs :
“14. If an offence takes place inside the privacy of
a house and in such circumstances where the assailants
have all the opportunity to plan and commit the offence
at the time and in circumstances of their choice, it will
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be extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed above, is
insisted upon by the Courts. A Judge does not preside
over a criminal trial merely to see that no innocent man
is punished. A Judge also presides to see that a guilty
man does not escape. Both are public duties. (See
Stirland v. Director of Public Prosecution 1944 AC 315 -
quoted with approval by Arijit Pasayat, J. in State of
Punjab vs. Karnail Singh (2003) 11 SCC 271). The law
does not enjoin a duty on the prosecution to lead
evidence of such character which is almost impossible to
be led or at any rate extremely difficult to be led. The
duty on the prosecution is to lead such evidence which it
is capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep in
mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some
light on the content and scope of this provision and it
reads:
(b) A is charged with traveling on a
railway without ticket. The burden of proving
that he had a ticket is on him."
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15. Where an offence like murder is committed in
secrecy inside a house, the initial burden to establish the
case would undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it to establish
the charge cannot be of the same degree as is required in
other cases of circumstantial evidence. The burden
would be of a comparatively lighter character. In view of
Section 106 of the Evidence Act there will be a
corresponding burden on the inmates of the house to
give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away by
simply keeping quiet and offering no explanation on the
supposed premise that the burden to establish its case
lies entirely upon the prosecution and there is no duty at
all on an accused to offer any explanation.”
51. The learned Additional Public Prosecutor also placed
reliance on the judgment in Tulshiram Sahadu Suryawanshi and another
Vs. State of Maharashtra reported in 2012(10) Supreme Court Cases 373,
again on the same principle and placed reliance on paragraph No.23 which
is as follows:
“23) It is settled law that presumption of fact is a
rule in law of evidence that a fact otherwise doubtful
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may be inferred from certain other proved facts. When
inferring the existence of a fact from other set of proved
facts, the Court exercises a process of reasoning and
reaches a logical conclusion as the most probable
position. The above position is strengthened in view of
Section 114 of the Evidence Act, 1872. It empowers the
Court to presume the existence of any fact which it thinks
likely to have happened. In that process, the Courts shall
have regard to the common course of natural events,
human conduct etc in addition to the facts of the case. In
these circumstances, the principles embodied in Section
106 of the Evidence Act can also be utilized. We make it
clear that this Section is not intended to relieve the
prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but it would apply to
cases where the prosecution has succeeded in proving
facts from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the
accused by virtue of his special knowledge regarding
such facts, failed to offer any explanation which might
drive the Court to draw a different inference. It is useful
to quote the following observation in State of West
Bengal vs. Mir Mohammed Omar, (2000) 8 SCC 382:
“38. Vivian Bose, J., had observed that
Section 106 of the Evidence Act is designed to
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meet certain exceptional cases in which it
would be impossible for the prosecution to
establish certain facts which are particularly
within the knowledge of the accused. In
Shambhu Nath Mehra v. State of Ajmer the
learned Judge has stated the legal principle
thus:(AIR p.406, para 11)
'11.This lays down the general
rule that in a criminal case the burden
of proof is on the prosecution and
Section 106 is certainly not intended to
relieve it of that duty. On the contrary,
it is designed to meet certain
exceptional cases in which it would be
impossible, or at any rate
disproportionately difficult for the
prosecution to establish facts which
are ‘especially’ within the knowledge
of the accused and which he could
prove without difficulty or
inconvenience.
The word ‘especially’ stresses
that. It means facts that are pre-
eminently or exceptionally within his
knowledge.'”
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52. In 2006(10) Supreme Court Cases – 681 referred to supra,
the facts were that there was a demand for dowry from the parents of the
bride. It was not the case of the prosecution that a 3 rd party stranger had
entered into the house and had committed the offence. There were no
strangers inside the house. Therefore, the Hon'ble Supreme Court had held
that only the inmates should explain how the offence happened.
53. In 2012(10) Supreme Court Cases – 373, referred to supra,
again in a murder / dowry death which happened inside the house and there
was no allegation that 3rd party strangers had entered into the house, the
Hon'ble Supreme Court had held that the inmates of house will have to
explain how the death occurred.
54. In the instance case, there is one very important
distinguishing circumstance, namely, that it is not the case of the
prosecution that this appellant/A1 had actually murdered the deceased. It is
the case of the prosecution that owing to her relationship with A2, she and
A2 had entered into a conspiracy to commit the murder of her husband and
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in furtherance of such conspiracy had engaged A3 to A7 and A8, the
juvenile offender to commit the murder. But the theory of conspiracy failed
owing to P.W.9 and P.W.10 being discredited by the Hon'ble Supreme
Court. A3, A4 and A5 had been acquitted by the Hon'ble Supreme Court.
A2 had died and therefore, the charge against him has also abated. The only
charge which remained was the charge under Section 302 IPC. There was
no charge framed against this appellant /A1 for offence under Section 302
r/w. 34 IPC. No weapons were recovered from A1.
55. The only evidence adduced was about the relationship
between her and A2. But that cannot be stretched to hold this appellant/A1
is guilty of the offence of committing murder of her husband. The earlier
incident of A1 and A2 having tried to run over the deceased had not been
established and had been termed by the Hon'ble Supreme Court as a “rather
weak and tenuous circumstance”.
56. In Raju @ Rajendra Prasad Vs. State of Rajasthan
reported in 2022 Supreme Court Cases Online 1242, while laying down the
dictum for analysis of evidence when the case rested on circumstantial
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evidence, the Hon'ble Supreme Court has held as follows :
“16. At the outset, it is required to be
noted that the case rests on the circumstantial
evidence. There is no direct evidence by which it
can be said that the appellants killed or
committed the murder of the deceased. There is
no direct evidence recorded indicating
involvement of the appellants in the crime and as
observed hereinabove, the case of the
prosecution is based on the circumstantial
evidence. As held by this Court in a catena of
decisions, in case of a circumstantial evidence,
the circumstances, taken cumulatively, should
form a chain so complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the
accused and none else and the circumstantial
evidence in order to sustain conviction must be
complete and incapable of explanation of any
other hypothesis than that of the guilt of the
accused and such evidence should not only be
consistent with the guilt of the accused but
should be inconsistent with his innocence.”
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56. In (2016) 10 SCC 519 (Jose @ Pappachan vs the Sub
Inspector of Police), the Hon'ble Supreme Court had held as follows:
“56.It is a trite proposition of law, that
suspicion however grave, it cannot take the place of
proof and that the prosecution in order to succeed on
a criminal charge cannot afford to lodge its case in
the realm of “may be true” but has to essentially
elevate it to the grade of “must be true”. In a
criminal prosecution, the court has a duty to ensure
that mere conjectures or suspicion do not take the
place of legal proof and in a situation where a
reasonable doubt is entertained in the backdrop of
the evidence available, to prevent miscarriage of
justice, benefit of doubt is to be extended to the
accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful, intangible or
non-existent but as entertainable by an impartial,
prudent and analytical mind, judged on the
touchstone of reason and common sense. It is also a
primary postulation in criminal jurisprudence that if
two views are possible on the evidence available, one
pointing to the guilt of the accused and the other to
his innocence, the one favourable to the accused
ought to be adopted.”
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57. In view of the above reasons, we hold that the prosecution
had not proved the case beyond reasonable doubt as against the appellant
herein/A1 and we are of the firm view that the judgment of conviction and
sentence against this accused/A1 rendered by the VI Additional District and
Sessions Court, Madurai in S.C.No.131 of 2012, dated 09.10.2013 should
be set aside.
58. In the result, the Criminal Appeal is allowed. The
judgment of conviction and sentence rendered by the VI Additional District
and Sessions Court, Madurai in S.C.No.131 of 2012, dated 09.10.2013 is set
aside. The appellant herein/A1 is acquitted of all the charges. The appellant
is directed to be set at liberty forthwith. The bail bonds executed, if any,
shall stand cancelled. The fine amount, if any paid, shall be refunded to the
appellant. Consequently, connected miscellaneous petition is closed.
[C.V.K., J.] & [R.P., J.]
25.10.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
RM
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To
1.The VI Additional District and Sessions Court,
Madurai.
2.The Superintendent,
Special Prison for Women,
Trichy.
3.The The Inspector of Police,
Usilampatti Nagar Police Station,
Madurai District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.V.KARTHIKEYAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
25.10.2024
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