Madras High Court
Velmurugan vs The State Rep. By on 22 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.A(MD)Nos.332 & 361 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)Nos.332 & 361 of 2020
Velmurugan ... Appellant in Crl.A(MD)No.332 of 2020/
Accused No.2
Pothumponnu ... Appellant in Crl.A(MD)No.361 of 2020/
Accused No.1
Vs.
The State rep. by
The Inspector of Police,
Abiramam Police Station,
Ramanathapuram District.
(in Cr.No.93 of 2018) ...Respondent/Complainant in both appeals
COMMON PRAYER : Criminal Appeals filed under Section 374(2) of
the Criminal Procedure Code to call for the entire records connected to
the Judgment in S.C.No.35 of 2019 on the file of the Principal District
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and Sessions Court, Ramanathapuram, dated 18.03.2020 and set aside the
conviction and sentence imposed against the appellants.
In both appeals
For Appellants : Mr.R.Alagumani – for A2
Mr.R.Manickraj – for A1
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
COMMON JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
These Criminal Appeals are filed against the conviction and
sentence passed against the appellants/accused No.1 and 2 in the
judgment dated 18.03.2020 passed by the Principal District and Sessions
Judge, Ramanathapuram in S.C.No.35 of 2019 by convicting and
sentencing the appellants for the offence punishable under
Section 302 and 449 IPC. A1 and A2 had been convicted for offence
punishable under Section 302 IPC and sentenced to undergo life
imprisonment and to pay a fine of Rs.2,000/- each in default to undergo
one year simple imprisonment each. A2 had been convicted for offence
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punishable under Section 449 IPC and sentenced to undergo five years
rigorous imprisonment and to pay a fine of Rs.1,000/- in default to
undergo six months simple imprisonment.
2. The case of the prosecution in brief is as follows :
(a) The complainant was residing with her husband at Keela
Kodumalur. Her younger son Armugam was married, with the
appellant /accused No 1 herein, 14 years back and was blessed with a girl
child, aged about three years.
(b) Her son was residing separately along with his wife, until
a year back, she had illegal intimacy with A2, who is the son of her
husband's second wife. After knowing the same, they cautioned her; but
she continued her relationship with A2.
(c) Therefore, her son deceased Arumugam left Keela
Kodumalur and went to Kerala. Thereafter, A1 lodged a complaint,
against the complainant before the All Women Police Station, with an
allegation that the complainant had separated her husband from her.
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Therefore, the complainant and others requested her son to return back
from Kerala, her son therefore, returned and startedd living with A1.
(d) On 16.07.2018 at about 12.30 hours, the witness, Arjun
and his wife Thotichi, noticed smoke from the house of her son, which
raised alarm. After hearing the same, she, and her husband went to the
house of her son, at that time, A1/her daughter-in-law came with a bill
hook, A2 came with an iron rod and they fled from the occurrence place.
She found her son lying in his house, bleeding from his head, when she
questioned him regarding what happened, her son replied that while he
was sleeping, A2 attacked him with an iron rod and inflicted injuries with
a bill hook further his wife and Murugan, tied him with a rope then
poured kerosene over him and set him ablaze. She found blood stains all
over the house and the mat and pillows were seen in a half burnt
condition.
(e) Immediately, she called 108 ambulance and admitted her
son in Government Hospital for treatment, but he succumbed to his
injuries at 3.15 hours. Therefore, she lodged the complaint and requested
for action.
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(f) P.W.20, Tmt. Jhansi Rani, Inspector of Police of
Abhiramam Police Station, recorded the complainant's statement of
P.W.1 and registered FIR in Crime No.93/2018, under sections 342 and
302 IPC in Ex.P19. She sent the FIR and complaint to the concerned
Judicial Magistrate Court.
(g) She went to the place of occurrence, prepared
observation, Mahazar Ex.P2 and rough sketch Ex.P20 in the presence of
witnesses Marikannu and Sasi Kumar, and recovered the material objects
viz., kerosene-cane, matchbox, half burnt slipper, half burnt mat and it’s
particles, half burnt Lungi, half burnt shawl, blood stained silver cup,
blood stained earth sample, normal earth sample (M.O.1 to M.O.12)
under a recovery mahazar - Ex.P3.
(h) Thereafter, she went to the Government Hospital and in
the presence of witnesses and Panchayatdars an inquest was conducted
upon the dead body between 14 hours to 16 hours and inquest report
Ex.P21 was prepared. She had sent a requisition through Special Sub
Inspector Thiru.Murugesan for conducting autopsy on the dead body.
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(i) She examined the witnesses Shanmugavalli, Karuppaiah,
Subramanian, and recorded their statements.
(j) As per the secret information, she went to Variangkootam
Bus stand on 18.07.2018 at 9.00 a.m. and arrested the accused in the
presence of witnesses Kannan, Durairaj and recorded their confession
statements under Ex.P23 and Ex.P25 and recovered material objects
under Ex.P22 and Ex.P24. Thereafter, the accused was sent for judicial
custody.
(k) She examined the witnesses Arjunan, Thottichi,
Malaisamy, Bharathiraja, Palani Kumar, Lakshmi, Kannan, Durairaj and
recorded their statements. She also recorded the further statements of
witnesses Shanmugavalli, Karuppaiah, Subramaniyan, Malaisami.
(l) She sent the material objects to the Court on 30.07.2018.
She examined the witnesses Janaki, Balamurugan, Ramesh, Shanmugam
and recorded their statements on 13.10.2018.
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(m) On 03.11.2018 examined Dr. Maria Mahendran, Special
Sub Inspector of Police Thiru.Murugesan, Head Constable
Thiru.Mahalingam, Women Constable Tmt.Shanmugapriya, Devasankari,
and recorded their statements.
(n) On 05.11.2018 after completion of the investigation
altered the section of law into sections 342, 302, 449 IPC from 342, 302
IPC and submitted the final report with the alteration report Ex.P26, to
the concerned Court.
3. On receipt of the records, the District Munsif cum
Judicial Magistrate, Kamudhi took up the case in P.R.C.No.38 of 2018
and issued summons to the accused. After appearance of the accused,
copies of all the prosecution documents and witnesses were furnished to
them free of cost under Section 207 Cr.P.C.
4. Since the offence was exclusively triable by the Sessions
Court, the learned Judicial Magistrate committed the case records to the
Principal District and Sessions Judge, Ramanathanpuram under Section
209(A) Cr.P.C. for further action.
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5. The Principal District and Sessions Judge,
Ramanathanpuram received the case records and numbered the case in
S.C.No.35 of 2019 and thereafter, framed charges against accused Nos.1
and 2 for the offence under Sections 342, 449 and 302 IPC and read over
the same and explained to the accused. The accused denied the charges
and claimed to be tried. Therefore, the case was posted for trial.
6. In order to prove the case of the prosecution, on the side
of the prosecution, P.W.1 to P.W.20 were examined and Ex.P1 to Ex.P26
were marked and Material Objects M.O.1 to M.O.14 were produced. On
the side of the accused, no witness was examined.
7. After full trial, the trial Court held that the accused No.1
was guilty of the offence punishable under Section 302 IPC and A2 was
guilty of the offence punishable under Sections 302 and 449 IPC. A1
and A2 had been convicted for offence punishable under Section 302 IPC
and sentenced to undergo life imprisonment and to pay a fine of
Rs.2,000/- each in default to undergo one year simple imprisonment
each. A2 had been convicted for offence punishable under Section 449
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IPC and sentenced to undergo five years rigorous imprisonment and to
pay a fine of Rs.1,000/- in default to undergo six months simple
imprisonment, against which, the present Criminal Appeals are filed on
the following among other grounds:-
(a) That the Court below ought to have held that the failure on the
part of prosecution for not sending the chemical examination is also fatal
to the prosecution.
(b) That the Court below ought to have held that the medical
evidence does not corroborate with the evidence of the eye-witnesses.
(c) That the Court below ought to have held that admittedly the
occurrence is said to have taken place in the dark night and therefore the
witnesses ought not to have witnessed the occurrence.
(d) That the other reasons given by the Court below in convicting
the appellant are all unsound and unsustainable in law.
(e) That the appellant herein has reserved his right for filling based
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on the additional grounds during the course of final hearing.
(f) That the judgment of the trial court is contrary to law and on the
facts of the case and the weight of evidence.
(g) That the learned trial Judge convicted the Appellant on the
basis of circumstantial evidence. There is no eye witness deposed before
the trail court relating to the involvement of the appellant in this case.
(h) That the prosecution failed to explain the reason for the delay
for registering the FIR and sent the FIR to the learned Judicial
Magistrate.
(i) That the witnesses P.W.2. P.W.3, P.W.4. P.W.6, 7 and P.W.9
turned hostile and P.W.1 is interested witness.
(j) That the presence of the PW I is highly doubtful. The PW.8 is
close relative of the P.W.1.
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(k) That the trial judge ought to have considered that the deceased
was admitted in the government hospital alive, and after taking treatment
as inpatient he died, but the prosecution failed to mark the accident
register as Exhibit, and the prosecution failed to examine the government
doctor who had admitted the deceased in the hospital and provide
treatment to the deceased as prosecution witnesses. It clearly established
the doubt regarding the case of the prosecution.
(l) That the learned trial judge ought to have considered that
according to the evidence of the P.W.I the deceased had attempted to
commit suicide by hanging just after four days of his marriage, which
clearly discloses that the deceased had suicidal tendency.
(m) That the trial Court failed to note that the prosecution has not
proved the case beyond reasonable doubt and hence the Trial Court ought
to have acquitted the appellants from all the charges on benefit of doubt.
(n) That the Trial Court passed the sentence against the appellants
based on the presumption and surmises, hence, the judgment dated
18.03.2020 of the trial Court is liable to be set aside.
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8. The Additional Public Prosecutor appearing on behalf of
the State argued that the deceased and A1 were living in the house where
the occurrence took place and the complainant and P.W.8 clearly stated
that both the accused ran away from the place of occurrence with
weapons, and the prosecution established that both A1 and A2 had illegal
relationship and all the witnesses had spoken about the quarrel between
A1, A2 and deceased. A1 is bound to explain how the incident took
place, as she was staying with the deceased at the time of occurrence, the
blood stain found in the weapon and the blood group of the deceased
were matching, the prosecution proved the case beyond all reasonable
doubt and these Criminal Appeals have no merits liable to be rejected.
9. Heard the learned counsel on either side and perused the
material records available on record.
10. Now the Court has to decide whether the judgement
passed by the trial court is sustainable or liable to be dismissed.
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11. Since the issues involved in these Criminal Appeals, the
facts, evidences and documents are one and the same, they are taken up
for hearing together and disposed of by this common judgment.
12. On careful perusal of the entire records, the prosecution
case unfolded from the evidence of P.W.1 to P.W.20 are as follows:
(i) PW1 in her evidence deposed that deceased Arumugam is
her son. A1 is the wife of deceased and her daughter-in-law, A2 is the
son of her husband's second wife.
(ii) Both the accused and the deceased had problem, A1 was
living with A2 and refused to live with her son, therefore deceased went
to Kerala. The villagers convened a meeting and pacified both her son
and A1. Her son came from Kerala for the peace talk. After a meeting,
both her son and A1 were living in the adjoining house for four days. On
the fourth day both had a quarrel. A1 and A2 went to the Abhiramam
Police Station and again a meeting was held between both her son and
daughter-in-law (A1).
(iii) They were living together for 10 days and again had a
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problem; a complaint was lodged in Kamudhi Police Station.
(iv) Thereafter, one Nagooran had a talk with them and
brought them to the village again. On the date of occurrence, both her
son and A1 had a fight, at that time, A2 was present, she pacified them
and advised them not to fight and came to her house and slept.
(v) On 16.07.2018 at about 12.00 hours, the witness
Thottichi and Arjunan raised alarm by stating that her son's house was
burning, she went and witnessed that her son was tied in the Cot with a
rope and shouted 'Amma Amma', when she entered into the house, but
she found nobody. But noticed that A1 and A2 ran away with a bill hook
and an iron rod. Her son informed that A1 inflicted injury on his neck,
A2 inflicted injury on his head with iron rod, and she also noticed injury
on his neck and head.
(vi) She further stated that one Bharathiraja called the
ambulance. When the ambulance reached, Arjunan, Malaisamy, and four
others took her son and kept in ambulance. She also accompanied her son
to the hospital. She informed the incident to the Doctor. The Doctor
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treated her son and informed to the Police Station, the police came and
obtained her thumb impression. Thereafter, her son died in the hospital.
(vii) P.W.2 Thiru. Subramanian, one of the eye witness to the
occurrence deposed that both the deceased and A1 had matrimonial
dispute. Himself and the elders of the village pacified them and advised
them to live peacefully. Both were staying together for 10 days. He came
to know about the occurrence that was taken place on 16.07.2018,
thereafter, he went to the place of occurrence and found iron rod, bill
hook, bucket, kerosene cane, burnt mat, the Police recovered the same.
He signed as witness in the complaint. Since he did not fully support the
case of prosecution, he was treated as hostile and was cross examined by
the prosecution.
(viii) P.W.3 one Malaisamy also did not support the
prosecution case stating that he was not aware of anything about the
occurrence. He was also treated as hostile and was cross examined by the
prosecution.
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(ix) P.W.4 Arjunan deposed that, both A1 and A2 were his
neighbors, they had illegal relationship, and the villagers cautioned them.
The deceased Arumugam went to Kerala, returned back and was living
with his wife. On the date of occurrence, at about 11.30 PM, he found
smoke from the residence of the deceased. He raised alarm. Himself,
Malaisamy, Marikannu, PW1, and his wife poured water and doused the
fire. Due to heat, they could not enter into the house and came back.
Thereafter, father of the deceased came. Bharathiraja called the
ambulance. Ambulance came, and parents of the deceased took
Arumugam to the hospital. Since he also did not fully support the
prosecution case, he was also treated as hostile and was cross examined
by the prosecution.
(x) P.W.5 Thiru. Marikannan deposed about the preparation
of observation mahazar and rough sketch by Investigation Officer in his
presence and the recovery of the material objects M.O.1 to M.O.7 and he
admitted his signatures in the document.
(xi) PW6 Thiru.Palanikumar, who is the neighbour of the
deceased, deposed about the problem between the deceased and A1. He
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stated that on the date of occurrence, there was a fight between the
deceased and A1. He thought that it was a regular fight and neglected
the same. At about 12.00 hours, he heard somebody was crying. He went
outside and saw witnesses Marikannan, Arjunan, Bharathiraja,
Shanmugavalli, his sister-in-law. Thereafter, he went inside the house of
Arumugam and found him in a burnt condition. WhenAmbulance came,
they covered the body of Arumugam with a bedsheet, and found injuries
on the backside of his head and neck. Subsequently, he came to know
that Arumugam had died. He was treated as hostile and was cross
examined by the prosecution.
(xii) P.W.7 Thiru.Karuppaiah father of the deceased and A2
did not support the case of prosecution, turned hostile, and was cross
examined by the prosecution.
(xiii) P.W.8 Tmt.Laxmi deposed that she is the neighbour of
PW1 and the deceased. The deceased was living with A1. On the date of
occurrence, she found smoke emanating from the house of the deceased.
PW1 and herself ran inside the house and upon finding A1 with a bill
hook and A2 with an iron rod, ran away from the place of occurrence.
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Thiru.Malaisamy and other villagers stopped the fire. She further stated
that both the deceased and A2 quarreled with each other and a
panchayath was held in the village, a complaint was also lodged before
the Police.
(xiv) P.W.9 Thiru.Kannan deposed that the Inspector of
Police had asked them to come to the Police Station. Durairaj and
himself went to the Police Station and signed the confession statement of
the accused and in the seizure mahazar Ex.P4 to Ex.P7. He was treated
as hostile and cross examined by the prosecution.
(xv) P.W.10, Dr.Maria Mahendran who had conducted
autopsy deposed about the injuries on the dead body of the deceased.
The dead body was in a charred condition. A cut injury found on the
occipital region measuring 6×4×2 cm. Blebs, Blister, vesicle are seen all
over the body. Blister contains only air mostly. 3rd degree burns over
face, upper limbs, chest. 2nd degree burns over abdomen and lower limbs
and he opined that the deceased would appears to have died due to
asphyxia, intracranial Hemorrhage and burn injury. The postmortem
certificate and final opinion were marked as Ex.P8 and Ex.P9.
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(xvi) P.W.11 Mr.Ramesh, Scientific Officer of the Forensic
Lab states that there is no alcohol or poison found in the Viscera.
(xvii) P.W.12 Mr.Balamurugan, Assistant Director of
Forensic Lab deposed that blood stain was found in (1) silver cup, (2)
blood stained earth, (3) bill hook, (4) iron pipe measuring 91 cm. (M.Os.
6, 11, 13, 14). But no blood stain was found in the ordinary earth (M.O.
12). Further stated that the blood group sample collected from the dead
body of the deceased and the blood stain found in item Nos.1, 2, 4 were
also sent to the Deputy Director, Forensic Lab, Madurai for serology
enquiry and received the report Ex.P13. As per the report, the blood
group of the accused and the blood group found in the vessel, earth, bill
hook, GI pipe belonging to human blood of 'A' group. The serology
report was marked as Ex.P14.
(xviii) P.W.13, Thiru.Shanmugam, Wire man of Electricity
Board states that Mela Kodumaloor and Keela Kodumaloor Village,
which comes under his control/restriction and on the date of occurrence,
there was no power cut in that area.
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(xix) P.W.14 Tmt.Thottichi, deposed that the deceased
Armugam and A1 were his neighbours. Two years back when she was
sleeping, a sheep made noise, due to which they came out and noticed
that the house of the deceased Arumugam was burning. Herself, her
husband, Malaisamy went to the place of occurrence, and except the
above, she was not aware of anything. She was also treated as hostile and
was cross examined by the prosecution.
(xx) P.W.15 Thiru.Bharathiraja, deposed that both A1 and A2
are his neighbours. Deceased is the husband of A1. On 16.07.2018 at
about 12.00 p.m., when he was sleeping, he heard somebody crying, and
he came outside, P.W.1 requested him to call the ambulance, as the victim
was alive. Therefore, he called 108 ambulance and the victim was then
taken in the ambulance along with his mother.
(xxi) P.W.16 Tmt.Shanmugapriya spoken about the handing
over of FIR to the Judicial Magistrate, Kamudhi at about 17.30 hours.
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(xxii) P.W.19 Thiru.Durairaj one of the witness to the
confession and recovery from A1, but did not support the case of
prosecution. He stated that he went to the police station in connection
with the Village festival, the Police obtained signature from him and P.W.
9. He was treated as hostile and cross examined by the prosecution.
(xxiii) P.W.20 Tmt.Jhansirani, who is the Investigating
Officer deposed about the registration of FIR, preparation of observation
mahazar, rough sketch, recovery of material objects from the place of
occurrence, inquest report, arrest, confession and recovery from the
accused and about the final report.
12.The prosecution case rests on circumstantial evidence as
no one directly witnessed the occurrence.
13.Motive is considered to have an important role if the
prosecution case rests on circumstantial evidence as motive would help
in completing the chain of circumstances.
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14.In this case, motive attributed for the offence is that A1 is
the wife of the deceased Arumugam, A2 who is the half brother of the
deceased. Both A1 and A2 had developed illegal intimacy, due to the
above, deceased Arumugam had problem with A1 and left to Kerala.
Thereafter, a panchayat was held and he came back from Kerala and
resumed living with A1. Both A1, A2 disliked the intervention of
Arumugam, so they planned to do away with him and on the date of
occurrence, while he was sleeping in his residence A1 and A2 attacked
him with bill hook and iron rod, thereafter, tied him with a rope in a pillar
and set him on fire by pouring kerosene and killed him.
15. Now we have to see whether the prosecution established
the motive for the crime.
16. P.W.1 mother of the deceased spoke about the problem
between the deceased and the accused. In her complaint, Ex.A1 and in
her evidence in the trial she clearly stated that both A1, A2 had illegal
intimacy, and due to the above, both the deceased and A1 continuously
had problem, several panchayat were held, but it was not solved. She
further stated that even on the date of occurrence both had a fight, she
pacified them and returned back to her house.
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17. The evidence of P.W.1 was supported by P.W.2. During
trial, he stated that both the deceased and his wife A1 had family dispute.
Himself and and the villagers had a meeting and thereafter, both were
living together.
18. P.W.4, Arjunan who is the neighbour of the deceased and
P.W.1 also supported the version of P.W.1 by stating that both A1 and A2
had illegal relationship, the same was cautioned by the villagers. Due to
the above reason, deceased Arumugam left to Kerala and thereafter, he
came back and living with A1.
19. P.W.6, Thiru.Palanikumar, who is the neighbour of the
deceased also spoke about the problem between A1 and her husband,
viz., the deceased.
20. P.W.8, Tmt.Laxmi, neighbour of the deceased also stated
that both the deceased Armugam and A2 Vel Murugan, had problem and
a complaint was lodged and a meeting was held in the Police Station, the
deceased Armugam therefore went to Kerala and was brought back to the
village.
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21. The enmity/motive between the deceased, A1, A2 clearly
established by the prosecution. Though the prosecution examined
number of eye witnesses except P.W.1, P.W.8 nobody stated that they saw
the accused in the place of occurrence with weapon.
22. As per the learned counsel for the appellants, the
presence of P.W.1 is doubtful at the time of occurrence. However, it is
established by the prosecution that P.W.1 is living in the neighbourhood
of her son. She deposed in the trial that at about 12 hours, both the
witnesses, Thottichi and Arjunan raised alarm that her son's house was
burning. She went to her son's house and found nobody but her son tied
in a pillar, and shouted as 'Amma, Amma'. Both the accused ran away
from the place of occurrence with weapons. When she enquired her son,
he informed her that A1 cut his neck with bill hook and A2 attacked him
with iron rod on his head. She found injuries on his neck and head. She
further stated that the deceased was taken to hospital in an ambulance
and was admitted in the hospital, where he was treated.
23. The complaint was lodged by PW1 under Ex.P1, in the
complaint it was contended that after she heard alarm raised by the
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witnesses Arjunan and Thottichi, she went to the house of her son and
found both the accused viz., A1 with bill hook and A2 with iron rod
fleeing away from the place of occurrence. She further stated that her son
was found in a charred condition lying in the front side of the house. On
enquiry, he informed her that while he was sleeping, accused suddenly
attacked him with iron rod on his head and also inflicted injuries on his
head and they tied him in a pillar and poured kerosene and set him
ablaze. Herself and her husband took him in 108 ambulance and admitted
him in the Government Hospital for treatment, but due to injuries, he
succumbed to death at about 3.15 a.m. She further contented that on
17.07.2018, morning she went to the police station and lodged the
complaint.
24. As per the complainant, when she entered into the house
of her son both the accused in possession of weapons fled away from the
place of occurrence, found her son lying in the front portion of the house.
During trial, she stated that when she entered into the house, she found
nobody, but she leaned in and found that both the accused had left the
place of occurrence. Her son was tied in a cot. The Investigation Officer
stated that he arrested both the accused on 18.07.2018 and recovered the
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weapons bill hook and iron rod (M.O.13 and M.O.14) in the presence of
witnesses Kannan and Durairaj, but the witnesses did not support the
claims regarding arrest, confession and recovery, and therefore turned
hostile stating that their signatures were obtained in the Police Station.
25. Further one Mr.Subramanian, Head of the Village who
was examined as P.W.2 stated that the Police came to the place of
occurrence the next day and recovered the weapons, namely, iron rod,
bill hook, bucket, oil-cane, etc.
26. P.W.8, Tmt.Lakshmi stated that on the date of occurrence
at about 10.00, to 11.00 p.m., she found smoke emanating from the house
of the deceased, Armugam, she went to the place of occurrence with P.W.
1, witness Malaisamy and other villagers to stop the fire. Both A1, A2,
ran away with the weapons. But none of the Villagers supported her
version.
27. Further as per P.W.1, the occurrence took place after 12
hours, whereas, P.W.8 stated that the occurrence took place at about
10.00 or 11.00 P.M, P.W.1 and, P.W.8 stated contrary statements about the
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Crl.A(MD)Nos.332 & 361 of 2020
time of occurrence.
28. P.W.1 further stated that her son was rescued from the
place of occurrence, admitted in the hospital and was treated by the
Doctor, however, the Investigating Officer did not obtain the accident
register and produce the same to prove the correct time of occurrence.
Further, the Doctor who had treated the deceased, when he was alive
soon after the incident was not cited as a witness to prove the exact time
at which the deceased was admitted in the hospital and for how long he
was alive, and about the statement of the witnesses accompanied by the
deceased to establish an understanding about the manner of the accident.
Therefore, the evidence of P.W.1 and P.W.8 is highly doubtful in the
aspect that if they saw the accused with weapon, as it was not established
by the prosecution.
29.The learned Additional Public Prosecutor appearing for
the State argued that it is proved by the prosecution that A1, wife of the
deceased was residing with the deceased in the place of occurrence.
Since the offence took place inside the house and soon after the
occurrence, A1 was not found and absconded, it is on her to explain the
true facts which were especially within her knowledge.
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Crl.A(MD)Nos.332 & 361 of 2020
30.He further argued that the weapon used for the
commission was stained with blood and it is proved that the blood group
of the deceased, blood stain found in the place of occurrence, and the
weapons used for the offence are found to belong to the same blood
group which was established by Forensic Expert Opinion and stated, the
enmity between A1, A2 and deceased was clearly established by the
prosecution, A1 who was available with deceased committed the offence
with help of A2 and except A1, A2 nobody had enmity with the deceased
and prayed to confirm the judgment of the trial Court.
31.It is true that almost all the witnesses stated that both the
deceased Armugam and his wife A1, were living together in the house
where the occurrence took place. The same was not denied by A1.
Though it was stated that A2 was also involved in the occurrence, but it
is not proved he was present in the residence of deceased at the time of
occurrence.
32.The occurrence took place inside the house where both
the deceased and A1 were residing, the victim Arumugam sustained
injury on his head and also sustained burn injuries all over the body. The
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Crl.A(MD)Nos.332 & 361 of 2020
occurrence took place at midnight. All the witnesses in one voice stated
that they had noticed smoke from the house of the deceased, went inside
the house and witnessed the deceased with burn injury, head injury.
33.The learned counsel for the appellants try to establish that
the deceased was having suicidal tendency as he had already attempted to
commit suicide once, therefore, he committed suicide by pouring
kerosene, and at that time, he fell due to which he sustained injury on the
head. Even assuming that it is true for the sake of argument, it is well
established by the prosecution that A1 and deceased were staying in the
house where the occurrence took place. If really, the deceased committed
suicide, A1 who was staying with him, soon after the occurrence could
have raised alarm, and tried to save her husband or could have called the
neighbors for help in order to save him or to take him to the hospital,
when the occurrence took place she was not found in the place of
occurrence, but absconded, which was spoken by all the witnesses. All
the witnesses in one voice stated when they noticed smoke from the
house of the deceased, they informed about the same to P.W.1, mother of
the deceased, and when she came to the place of occurrence she made
arrangements along with other witnesses to stop the fire. Thereafter, they
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Crl.A(MD)Nos.332 & 361 of 2020
called the ambulance and sent the victim to the hospital. No explanation
was offered on the part of A1 as to why she was not there but it was
proved that she was absconding, which created serious doubt in the the
minds of the Court about her absence.
34.The weapons available in the place of occurrence found
with blood stains, the blood group of the deceased was collected and was
sent for grouping test, Ex.P13 is the report on control sample, which
reveals that the blood group of the deceased was examined and found
that it belongs to 'A' group. The blood stain found in earth, bill hook, G1
pipe found human blood and belongs to 'A' group as per Ex.P12. The
viscera report clearly shows that there is no poison or alcohol deducted in
the stomach and intestine, liver, kidney, blood and preservative of the
deceased. The Doctor who had conducted autopsy clearly stated that the
deceased died due to asphyxia, intracranial Hemorrhage (blood clot) ,
burn injury and suffocation.
35.The learned counsel for the appellants further stated that
there is a possibility of the head injury if the deceased had a fall, but the
same could not be believed as the Doctor who conducted autopsy clearly
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stated that a cut injury measuring 6 x 4 x 2 cm was found in the occipital
region of the deceased, further when he cut the skull, blood clot was
found in the brain and a fractured bone was found on its backside, which
shows that such serious injuries would not have occurred if he had a fall.
36.As far as the burn injury found on the dead body, if he
committed self immolation he would have sustained burn injuries all over
his body. But in this case the deceased sustained injuries on his frontal
region of face, upper hands, chest, stomach, and legs not on head and
backside, which proved that some one poured kerosene and had set the
fire.
37.Therefore, the argument putforth by the appellants
counsel that the deceased committed suicide by self immolation and had
a fall due to which sustained head injury is proved as false. A1 who was
staying with the deceased and was last seen with him had not offered any
explanation about her absence and explained where was she staying at
the time of occurrence. The prosecution clearly established that she had a
motive to do away the deceased as she had an illegal affair with the
second accused. The same was disliked by the deceased, he left her and
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Crl.A(MD)Nos.332 & 361 of 2020
went to Kerala. She was cautioned by PW1 and other villagers, the
deceased was requested to return from Kerala and she was advised to live
with him, and therefore, there is motive for A1 to kill him. Further, she
was last seen together with the deceased before the occurrence, which
was spoken by many witnesses, it was stated that at that time, she had a
quarrel with him. The occurrence did not happened at any other place,
but in the private place where both the deceased and the first accused
were living together, the deceased was set ablaze, and had head injuries.
All the neighbors and, PW1, found him in a serious condition. But the
first accused was not found in the place of occurrence. She left
suspiciously, and did not report the incident to the police or to the
neighbors. The blood stained earth, weapons recovered from the place of
occurrence were found belonging to the blood group of the deceased.
Except A1 and A2, no other persons had any previous motive/enmity
with the deceased.
38.During 313 Cr.P.C. questioning, she has not specifically
denied that she was residing with the deceased on the date of occurrence.
Onus under Section 106 of the Indian Evidence Act shifts on accused,
but she had not offered any explanation.
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Crl.A(MD)Nos.332 & 361 of 2020
39.For better understanding, Section 106 of Indian Evidence
Act reads as follows :
“106. Burden of proving fact especially
within knowledge. When any fact is especially
within the knowledge of any person, the burden
of proving that fact is upon him.
Illustrations
(a) When a person does an act with some
intention other than that which the character and
circumstances of the act suggest, the burden of
proving that intention is upon him.
.......
Comments
This section states that when any fact is
specially within the knowledge of any person the
burden of proving that fact is upon him. This is
an exception to the general rule contained in
section 101, namely, that the burden is on the
person who asserts a fact. The principle
underlying section 106 which is an exception to
the general rule governing burden of proof
applies only to such matters of defence which are
supposed to be especially within the knowledge
of the defendant. It cannot apply when the fact is
such as to be capable of being known also by a
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Crl.A(MD)Nos.332 & 361 of 2020
person other than the defendant.
It was held that when various links in the
prosecution case have been satisfactorily made
out pointing the accused as the probable
assailant and the proximity of the accused to the
deceased as regards the time and situation, and if
the accused does not offer any explanation which
might afford a reasonable basis for a conclusion
consistent with his innocence such absence of
explanation or false explanation would be an
additional link to the prosecution links.
Following this principle in Re : Naina Md (AIR
1960 Mad 218) it was held that though section
106 does not cast any burden on the accused, if
some facts are specially within his knowledge he
has to prove the same which could support any
theory or hypothesis compatible with his
innocence.”
The prosecution clearly established that A1 was last seen with deceased
soon after the occurrence after she had quarrelled with him. She had a
motive to kill him as she had illegal intimacy with A2, on the date of
occurrence she alone was staying with him and around midnight the
deceased was attacked on his head and was set ablaze with kerosene, but
A1 who was residing with him suddenly disappeared without offering
any explanation, it is a relevant factor and are the appropriate
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circumstances to hold her guilty for the injury of the deceased and, it was
to the exclusive knowledge of the accused, since she has not offered any
explanation as to the circumstances in which the death occurred which
raises presumption against her regarding if she is responsible for his
death, we hold that she alone has committed the offence. The trial Court
after analyzing the evidence available, convicted the first accused for life
under section 302 IPC, and we do not wish to interfere with the
judgement of the trial court and confirmed the judgement dated
18.03.2020. We conclude that there is no reason available to interfere
with the judgment of the trial Court with regard to A1 alone.
40.However, though the second accused also had enmity
against the deceased Arumugam, the presence of the second accused was
not proved by the prosecution properly, no witness stated that both A1,
A2 and the deceased were last seen together. PW1, PW8 stated that they
found A1 and A2 with weapons, but the confession and recovery was not
proved. The witness before whom the accused was arrested was also not
supported by the prosecution case, and therefore conspiracy between
A1and A2 for the crime was not proved. Except the fact that he was
having illegal affair with the wife of the deceased, no material is
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available to fix the second accused with the crime and this Court could
not find any material to fix the second accused with the crime and the
prosecution has failed to establish that A2 was available at the place of
occurrence and inflicted injury on him. Therefore, the conviction is
passed against the second accused is hereby set aside. Therefore, A2 is
acquitted from the charges under Sections 302 and 449 IPC.
41.In the result, the Criminal Appeal in Crl.A.(MD)No.332
of 2020 is allowed. The conviction under Sections 302 and 449 IPC
passed by the learned Principal District and Sessions Court,
Ramanathapuram, dated 18.03.2020 in S.C.No.35 of 2019 is set aside.
A2 is acquitted from the charge under Sections 302 and 449 IPC. The
appellant/A2 is to be set at liberty forthwith, unless his detention is
required in connection with any other case. The bail bonds executed, if
any, shall stand cancelled. The fine amounts, if any paid, shall be
refunded to the appellant/A2.
42.In the result, the Criminal Appeal in Crl.A.(MD)No.361
of 2020 is dismissed. The conviction under Section 302 IPC passed by
the learned Principal District and Sessions Court, Ramanathapuram,
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Crl.A(MD)Nos.332 & 361 of 2020
dated 18.03.2020 in S.C.No.35 of 2019 is confirmed with regard to A1
alone. The Trial Court is directed to incarcerate A1 for the remaining
period of sentence forthwith.
(G.R.S., J.) & (R.P., J.)
22.01.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
To
1.The Principal District and Sessions Court,
Ramanathapuram.
2.The Inspector of Police,
Abiramam Police Station,
Ramanathapuram District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)Nos.332 & 361 of 2020
G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
Crl.A(MD)Nos.332 & 361 of 2020
`
22.01.2025
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