Madras High Court

A.Annal vs State Rep. By on 19 October, 2024

Author: C.V. Karthikeyan

Bench: C.V. Karthikeyan

    2024:MHC:3599



                                                                             Crl.A(MD) No.114 of 2021


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              Reserved on :     25.09.2024

                                              Pronounced on : 19.10.2024

                                                        Coram:

                            THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN
                                               AND
                              THE HONOURABLE MS. JUSTICE R. POORNIMA

                                              Crl.A.(MD)No.114 of 2021


                     A.Annal                        .. Appellant/Victim/wife of deceased

                                                          Vs.

                     1.State rep. by
                       The Inspector of Police,
                       Kalakadu Police Station,
                       Tirunelveli District
                       Crime No.114/2004            .. Respondent/Respondent/Complainant


                     2.Ebenezer                    ... Respondent / Respondent/Accused 1
                     3.Kannan                     ... Respondent / Respondent / Accused 2
                     4.Mahendren                  ... Respondent /Respondent /Accused 3




                     1/24

https://www.mhc.tn.gov.in/judis
                                                                                  Crl.A(MD) No.114 of 2021


                     Prayer: Criminal Appeal filed under Section 372 of the Criminal

                     Procedure Code, to call for the records in S.C.No.206 of 2004 on the file

                     of III Additional Sessions Judge, Tirunelveli allowing this appeal and to

                     set aside the judgment dated 30.11.2020 and convict the respondents 2 to

                     4 for the offences punishable under Sections 120(B) read with 302 and

                     109 r/w. 302 I.P.C, 1860.


                                        For Appellant      : Mr.G.Krishnamurthy

                                        For Respondents    : Mr.S.Ravi,
                                                             Additional Public Prosecutor for R1

                                                            : Mr.S.Palanivelayutham for R2


                                                        JUDGMENT

(Judgment of this Court delivered by R.POORNIMA,J.)

This Criminal Appeal is filed against the acquittal of the accused /

respondents 2 to 4 in the judgment dated 30.11.2020 passed by the III

Additional Sessions Judge, Tirunelveli, in S.C.No.206 of 2004 by

acquitting the respondents 2 to 4 from the charges for the offences

punishable under Sections 302 read with Section 120(B) and 109 I.P.C,

1860. The appellant herein is the wife of deceased Iyyappan who has

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been examined as P.W.4 in the trial Court in S.C.No.206 of 2004, she

had preferred this Criminal Appeal, against the order of acquittal, under

Section 372 Cr.P.C, 1973.

2. The brief facts of the case are as follows:

2.1. One Iyyapan, husband of the appellant, was done to death on

23.03.2004. A case was initially registered under Section 174 Cr.P.C,

1973 and later, altered into Sections 302 read 120(B) and 109 I.P.C,

1860. As per the prosecution case, the deceased Iyyapan, was an

important witness in a criminal case which was pending before the Chief

Judicial Magistrate Court, Tirunelveli against the accused Nos.2 and 3.

Due to the above, Accused Nos.2 and 3 anticipated an unfavourable

result in their favour and therefore, they had previous enmity against

Thiru.Iyyapan.

2.2. On 15.03.2004, in a tea shop, Accused Nos.1 to 3, hatched

criminal conspiracy to commit the murder of Thiru.Iyyapan. In that

conspiracy, Accused Nos. 2 and 3 induced accused No.1 to do away

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Iyyapan (deceased) and on such instigation and abetment, on 22.03.2004,

when the deceased-Iyyapan was attending a marriage, the first accused in

order to complete the plan made Iyyapan to consume alcohol. When he

became unconscious, the first accused with intention to commit murder,

took him in a two wheeler to north of Mavadi south of Salaipudhur and

attacked him with Iron rod and inflicted injuries and thereby, caused his

death. The Inspector of Police, Kalakadu Police Station filed charge

sheet against A1 to A3. This was taken cognizance by the Judicial

Magistrate in P.R.C.No.19 of 2009 and copies were furnished to the

accused as contemplated under Section 207 Cr.P.C. As the offence

against the accused were exclusively triable by the Court of Session, the

judicial Magistrate committed the case to the Principal Sessions Court,

Tirunelveli. The case was taken by the Principal Sessions Court in

S.C.No.206 of 2004 and the Principal Sessions Judge made it over to the

III Additional Sessions Judge on 15.02.2005. After receipt of the case,

the learned Additional Sessions Judge framed charges against the first

accused under Sections 120(B) read with 302, 109 read with 302 I.P.C

and against the Accused Nos.2 and 3 under Section 120(B) read with 302

and 109 read with 302 I.P.C. Since the accused pleaded not guilty and

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claimed to be tried, the III Additional Sessions Judge, conducted trial.

2.3. To prove the case of the prosecution, 20 witnesses were

examined and Ex.P1 to Ex.P29 were marked and Material Objects M.O.1

to M.O.10 were produced. After full trial, since the Court found that the

prosecution failed to prove the case beyond all reasonable doubt,

acquitted the accused from the above charges.

3. Aggrieved by the said order, this Criminal Appeal has been

filed by the victim, on the following grounds:

(i) The judgment of the lower Court is against law, weight of

evidences and probabilities of the case and hence, liable to be set aside.

(ii) The lower Court ought to have believed the evidence of P.W.1

to P.W.21 and convicted the respondents 2 to 4.

(iii) The lower Court ought to have accepted the evidence of

exhibit P.1 to P29 and convicted the respondents 2 to 4.

(iv) The lower Court ought to have accepted the evidence of M.O.

1 to M.O.10 and convicted the respondents 2 to 4.

(v) The lower Court deliberately deviated from the regulated

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procedure to write a judgment. Further, the lower Court did not narrate

the entire deposition of the prosecution witnesses while writing

the judgment with an intent and determination to acquit the respondents 2

to 4.

(vi) The lower Court did not compel the prosecution to examine

Senthil Kumar, who is the main witness rather allowed the prosecution to

dispense with his appearance mechanically.

(vii) The lower Court with pre-determined intention to acquit the

respondents 2 to 4 discussed only the laches.

(viii) The lower Court ought to have convicted the respondents 2

to 4 on the basis of evidence of P.W.18 and the evidence of P.W.14.

Further, the evidence of P.W.14 ought to be considered relevant in view

of res-gestae.

(ix) The lower Court went against Law and Judicial Precedents to

disbelieve the evidence of P.W.11 on the ground that she is the relative

of P.W.14.

(x) The lower Court ought to have taken judicial notice that the

deceased Iyyapan was important witness in a criminal case pending

against the respondents 3 and 4 by invoking Section 165 of Indian

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Evidence Act, 1972 (amended).

(xi) The lower Court ought to have convicted the respondents 2 to

4 on the ground that the evidence of P.W.9 to P.W.11 as sufficient for

last seen theory.

(xiii) The lower Court after allowing the prosecution to dispense

with listed witnesses mechanically and later, acquitted the respondents 2

to 4 on that evidence.

(xiv) The lower Court wrote the judgment in a causal way and

illegally held that the evidence of P.W.4, P.W.19, P.W.17, P.W.5, P.W.7,

P.W.8, P.W.9, P.W.20, P.W.21 and evidence of P.W.11, P.W.14 and

P.W.15 is not sufficient to prove the case without discussing their

evidence within the test of Indian Evidence Act, 1872 (as amdned).

(xv) The lower Court failed to exercise the provisions of Sections

357A(3) Criminal Procedure Code, 1973 (as amended) and awarded

compensation to appellant / victim.

(xvi) The lower Court ought to have described the entire

deposition of prosecution witness before discussing issues as to whether

the prosecution proved their case or not. This deliberate omission

warrants the de-novo trial since the entire trial conducted by the lower

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Court seems to be not participatory to administer justice. The lower

Court tolerated all lapses on the part of prosecution as silent spectator

and later acquitted the respondents 2 to 4 conveniently.

4. The learned counsel for the appellant argued that the lower

Court did not compel the prosecution to examine Senthil Kumar, who is

the key witness, but, allowed the prosecution to dispense with. The lower

Court failed to consider the evidence of P.W.14. The prosecution failed

to peruse the case records against the respondents 3 and 4, in which, the

deceased Iyyapan was an important witness. The lower Court failed to

take into consideration the evidence of P.W.9 and P.W.11, who had last

seen the accused and the deceased. The prosecution dispensed with a

number of witnesses mechanically and that was not questioned by the

lower Court. The lower Court failed to exercise the provisions of Section

357 Cr.P.C and award compensation to the appellant / victim.

5. The learned Additional Public Prosecutor, who appeared for the

first respondent argued that the prosecution produced all the material

witnesses before the Court and also marked important exhibits and

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Material Objects. Since the important witnesses turned hostile and some

of the key witnesses, who had accompanied the deceased and are alleged

to have witnessed the occurrence were not examined as they were not

found and for that the prosecution could not be found fault. Important

witnesses turned hostile and did not support the prosecution case and

based on the available evidence and materials, the lower Court acquitted

the accused and prayed to dismiss the appeal.

6. Heard both sides.

7. After careful perusal of the entire case records, it reveals that

though prosecution cited 29 witnesses, during trial, 21 witnesses were

examined and witness Nos. 7 to 10, 12 and 23 were dispensed with by

the prosecution.

8. The list of witnesses relied upon by the prosecution were given

in the charge sheet filed by the Inspector of Police, Kalakadu Police

Station, dated 29.05.2004. When perused, it is seen that L.W.1-

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Shanmuga Sundaram, brother of the deceased, L.W.2 Annal, wife of

deceased were cited as witnesses, in order to prove the motive for the

crime.

9. Thiru.Shanmuga Sundaram – L.W.1 had been examined as

P.W.11, who is the brother of the deceased Iyyapan and L.W.2

Smt.Annal had been examined as P.W.14, who is the wife of the

deceased. During trial, P.W.11 stated that he was informed by one Raja

S/o.Chandran that his brother was found with blood injuries in a mud

road near Mavadi. He went to the place of occurrence with his brother

Yovan and found his brother Iyappan with injuries. He brought a Van

and kept him inside the Van and took him to a 15 meter distance and

switched on the light and found that he was dead. Therefore, they left the

vehicle with dead body and went to the police station and lodged a

complaint on 22.03.2004, midnight 3 O' clock. Through him, the

complaint has been marked as Ex.P14. He further deposed that on

enquiry, he came to know that due to previous enmity, his brother was

kidnapped and murdered by A1. He was also informed by Selvaraj and

Baskar that on 23.03.2004 at 5 O' clock, Accused Nos. 1 to 3 hatched

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conspiracy to kill his brother and Accused No.2 handed over a bundle of

cash to A1 and A1 assured that he will do away his brother and get the

remaining money. During trial, he had not spoken anything about the

motive and did not state that he was informed by Selvaraj and Baskar

about the conspiracy hatched between the accused.

10. However, it reveals from his evidence that he is not an

eyewitness to the conspiracy. Further, the prosecution had not cited the

informant Baskar and Selvaraj as witnesses in the charge sheet, but,

subsequently added Selvaraj as witness No.29. He was examined as

P.W.18. Likewise, P.W.14 wife of the deceased Annal deposed that

Selvaraj and Baskar informed her about the conspiracy between Accused

Nos.1 to 3 and that cash was handed over by A2 to A1. She was also not

an eyewitness to the conspiracy, but hearsay witness. She had not spoken

anything about motive to the occurrence.

11. P.W.14, in her evidence deposed that Selvaraj and Baskar

informed about the conspiracy to her on 05.04.2004. However, during

cross examination, she admitted that she had not stated anything about

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the same to the police. However, P.W.11 during cross examination

stated that he had informed the police about the information given by

Selvaraj and Baskar. But, it was not recorded in his Section 161 Cr.P.C.

Further, the evidence of P.W.11 and P.W.14 are totally contra to their

statement recorded under Section 161 Cr.P.C. In the 161 Cr.P.C.

statement, P.W.11, stated that on 22.03.2004, he was informed by one

Raja that himself, his brother Iyappan and A1 were attending a marriage

at Kattalai and returned in a two wheeler at 11.45 hours. He then found

Iyaappan’s dead body on South Road, on the southern side. After hearing

the same, he along with his relatives had gone to that place and

thereafter, he had informed the same to Annal P.W.14 and lodged the

complaint that his brother was killed by an unknown person. He stated in

his statement about the conspiracy between the accused Nos.1 to 3.

Likewise, in the 161 Cr.P.C statement of P.W.14 there was no whisper

about the conspiracy. But during trial, both P.W.11 and P.W.14 made

improvements in their evidence by stating that the conspiracy between

the accused was informed by Selvaraj and Baskar. The said Selvaraj had

been examined as P.W.18. He stated that on 20.03.2004, evening 05.00

p.m., when he was standing in his residence, he witnessed the conspiracy.

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A3 informed A2 that A1 is the Fit Person to do away Iyaappan. A2

handed over cash to A1. A1 assured that he would complete the mission

within 5 days. Since his conscious pricked him, he informed the same to

Annal on 05.06.2005. During cross examination, he admitted that he is

the own brother of Annal. He also admitted that he had not informed

about the conspiracy to the police soon after hearing the same, for which,

he replied that due to fear, he had not informed the same to police.

Further, he had not deposed in his evidence that he had informed about

the conspiracy to P.W.11 Shanmugasundaram.

12. The evidence of the above witness is not credible, as deceased

Iyaappan is the husband of his own sister. When he heard that his own

brother-in-law's life is danger, it is not possible to keep silence for one

year. Even after the death of Iyappan also, he had not stated anything to

the police and he kept silent for one year and then, during trial stated that

he witnessed the conspiracy. The prosecution not stated any plausible

explanation for the delay.

13. Further, he has not spoken about place where the conspiracy

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took place. In this regard, investigating officer did not record further

statement of P.W.11 and P.W.14. Therefore, the evidence of P.W.11,

P.W.14 and P.W.18 about the conspiracy among A1 to A3 is not reliable.

Likewise, L.W.5, L.W.6, L.W.7 were also cited as witness to prove the

conspiracy. L.W.5 - one Suresh and L.W.6 - one Thangaraj have been

examined as P.W.1 and P.W.2. Both turned hostile and did not support

the prosecution case. One Yovan – L.W.11 had been examined as P.W.

12, to prove the motive. During chief examination, he had stated that

himself and accused Iyappan were cited as witnesses in Guruswamy case.

Accused Nos.2 and 3 threatened him on 03.03.2004, at night 01.45 a.m.,

not to depose evidence against them in that case or they will do away

with them and on 22.03.2004, murdered Iyappan. Therefore, he called A2

and A3 viz., Mahalingam and Kannan through phone and questioned

them why they murdered Iyappan, for which, both asked whether they

wanted to do the same to him, and immediately, he kept the phone. He

had lodged a complaint before the Thirukurunkudi Police Station for self

protection. However, no such complaint or phone call details had been

produced by prosecution to prove that a complaint was lodged by

P.W.12. His statement was contrary to his statement under Section 161

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Cr.P.C. In that statement, he had not stated about the complaint lodged

against the accused before the Police Station and that he was not an

eyewitness to the occurrence.

14. P.W.6 Thanjarajan, who was cited as witness for recovery of

weapon from the accused did not support the prosecution case and turned

hostile. Confession and recovery has not been proved by prosecution.

L.W.4 - one Tr.Gopalakrishann was cited as eyewitness, who had

accompanied the accused, but, he was not examined as he was not found

in his address which is evident from V.A.O. Report, in the case records.

15. P.W.9 is an important witness, who had last seen the witness

and accused together on the date of occurrence. He stated that he saw the

first accused and the deceased - Iyyapan in a vehicle bearing Registration

No.TN-74-B-5753 and the said vehicle was followed by another vehicle

bearing Registration No.TN-72-V-8988, in which, witnesses viz.,

Gopalakrishnan, Harikrishnan and Jayakumar were travelling. When he

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was under surveillance, both the vehicles came near him and he stopped

both the vehicles, but, the vehicle bearing Regisration No.TN-74-

B-5753, where the accused and deceased were travelling did not stop.

He stopped the vehicle wherein Gopalakrishnan and others were

travelling bearing Registration No.TN-74-V-8988. He asked

Gopalakrishanan to bring the first accused, deceased and other witness.

Thereafter, he received intimation that Iyyapan's body was found with

blood injuries. Since the jurisdiction of the said place comes under the

Kalakadu Police, they came to the place of occurrence. He also went and

saw the dead body of Iyappan in a Maxi Cab, kept behind the driver seat

and also found blood strains near 60 feet away. He stated that the said

Iyyapan deposed against the accused Nos. 2 and 3 in Crime No.49 of

1999. But, no such case details were marked on the side of the

prosecution.

16. Important witnesses, viz., Gopalakrishnan and Jayakumar

were not examined by the prosecution during trial. Harikrishnan and

Raja, who were accompanying the accused, were not cited as witness.

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17. The prosecution relied upon L.W.8, L.W.9, L.W.10 to prove

that the 1st accused made the deceased to consume alcohol, but, none of

the witnesses were examined by the prosecution. Normally, the trial

Court would allow the prosecution to dispense the witness, but, the Court

has the power to examine the witness, if their evidence is vital, if the

prosecution fails to do and the Court can consider if necessary in the

interest of justice to call the witnesses without the consent of prosecution

or defence. The trial Court had not taken any steps to call the witness.

18. The lower Court mentioned in the judgment that the

investigating officer conducted the investigation in a hazard manner and

also mentioned that there is no use for reinvestigation as the matter was

of the year 2004.

19. In this case, except the close relatives, none of the witness

supported the case, but, the relative witnesses were not credible. In this

case, it is true that there are lapses in investigation. The Investigating

Agency did not conduct an investigation in a tainted and unfair manner.

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The Supreme Court in the case of V.K. Sasikala Vs. State reported in

(2012) 9 SCC 771 has held as under :-

''12. The parameters governing the process of investigation of a criminal charge, the duties of the investigating agency and the role of the courts after the process of investigation is over and a report thereof is submitted to the court is exhaustively laid down in the different Chapters of the Code of Criminal Procedure, 1973 (CrPC). Though the power of the investigating agency is large and expansive and the courts have a minimum role in this regard there are inbuilt provisions in the Code to ensure that investigation of a criminal offence is conducted keeping in mind the rights of an accused to a fair process of investigation. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a day-to-day basis and the power of the court under Section 172(2) and the plenary power conferred in the High Courts by Article 226 of the Constitution are adequate safeguards to ensure the conduct of a fair investigation.''

88. The expression "fair and proper

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investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.

89. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya v. State of Karnataka (2012) 7 SCC 407 that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction.

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20. However, it is noted that the complainant did not challenge the

non examination of witness and improper investigation, before the trial

Court. On careful perusal of records, the Court finds that the lapse on the

part of investigating agency alone is not ground to acquit the accused by

the lower Court, but the lower Court must considered whether no

material was available against the accused. The lower Court then

acquitted the accused.

21. In 2008 10 SCC 450, Ghurey Lal vs the State of Uttar

Pradesh, the Hon-ble Supreme Court had laid down the principles to

overrule or otherwise disturb a trial Court judgment of acquittal. In para

17, it had been held as follows:

“70.In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so.

A number of instances arise in which the appellate court would have ?very substantial and compelling reasons? to

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discard the trial court-s decision. “Very substantial and compelling reasons” exist when:

(i) The trial court-s conclusion with regard to the facts is palpably wrong;

(ii) The trial court-s decision was based on an erroneous view of law;

(iii) The trial court-s judgment is likely to result in ?grave miscarriage of justice?;

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.”

22. When a case rests on circumstantial evidence, motive is a key

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link in the chain of circumstances that can help to establish the guilt of

the accused. But, even the motive was not established by the prosecution.

Absence of motive can weigh in favour of the accused and in the absence

of motive, prosecution cannot prove the case. The prosecution failed to

prove conspiracy between the accused. There are contradictions in the

statements recorded under Section 161 Cr.P.C and the deposition by the

witness during trial. The last seen theory was spoken to, but, witness,

who accompanied the accused and deceased were not examined. The

arrest, confession and recovery were not established. Except the official

witness, no materials are available to connect the accused with the crime.