Madras High Court
Easkkimuthu @ Muthu vs State Through on 3 March, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.340 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 03.03.2025
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl. A(MD)No.340 of 2020
Easkkimuthu @ Muthu .. Appellant/Accused No.1
Vs.
State through
The Deputy Superintendent of Police,
Ambasamudram Sub Division,
Kallidaikurichi Police Station,
Tirunelveli District.
(Crime No.344 of 2011) ....Respondent/Complainant
PRAYER: Criminal Appeal is filed under Section 372 of the Code of
Criminal Procedure, against the judgment dated 18.12.2015 in S.C.No.51 of
2013 on the file of the learned II Additional District and Sessions Judge,
Tirunelveli.
For Appellant : Mr.R.Manickaraj
for
M/s.R.Alagumani
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
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Crl.A(MD)No.340 of 2020
JUDGMENT
Dr.G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
The Criminal Appeal is preferred by the first Accused (A-1)
against the judgement of conviction rendered in S.C.No.51 of 2013, on the
file of II Additional District and Session Judge, Tirunelveli, dated
18.12.2015.
Facts leading to the appeal:
The Criminal Appeal is filed by the Accused No.1 and he was charged
for the offences under sections 449, 302, 363, 342,366, 386 and 380 of IPC
and Section.3(2)(V) of SC/ST (POA) Act. The Accused No.2 was charged
for the offences under section 118 and 201 of IPC.
2. After elaborate discussions, the trial Court has found the
Appellant/Accused No.1 guilty of offences under sections.449, 302, 363 and
342 of IPC and he was acquitted from the charges under section.366, 386,
380 of IPC and Section 3(2)(V) of SC/ST (PoA) Act. The 2nd Accused was
acquitted by the trial Court in both the charges namely Section 118 and 201
of IPC.
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3. This appeal is filed on the ground that the trial Court has miserably
failed to appreciate the evidence of P.W.1 who claims to be the eye witness
to the occurrence. The conduct of the witness is totally unnatural and not
supported by any corroborative evidence. But substantially the
contradictions have not been appreciated by the Court below.
4. The short facts of the case, as spoken by the witnesses for
prosecution, are that the deceased Annalakshmi and her daughter Jamuna
(P.W.1) were residing near the house of the first accused. Both were
belonged to different community and there was a property dispute between
them, regarding using a poromboke land near their house.
4.1. On the wee hours of 16.08.2011, the deceased was sleeping in the
cot outside the house and P.W.1 was sleeping inside the house. At about
02.00a.m., P.W.1 heard some noise and when she came out saw that the first
Accused strangulated her mother's neck with in-skirt tape. She was unable to
prevent it out of fear. The first accused took a knife and placed it on her
(P.W.1) neck and threatened her not to rise alarm. The first accused
instructed P.W.1 to come along with him with her cloths. Fearing death, the
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P.W.1 took all her clothes in a bag and went with the accused to a place
called AC parai near their house. From 03.00a.m. to 7.00a.m., the first
accused kept P.W.1 in captive. At 5.00a.m., the first accused has taken the
cell phone of the deceased and called Accused No.2 by using his sim card.
The second accused came to AC Parai at 05.30.a.m. At that time, the first
accused asked P.W.1 to give her ear stud and told that he will marry her, so
that she will not spill the beans.
4.2. P.W.1 gave her stud to the second accused. By 07.00 Clock,
there was human movements in that place. P.W.1 gathered strength and
under pretext of attending her naturals call, she escaped from the clutches of
the first accused and reached her home. She got the cellphone of Subbu
(P.W.11) her relative and called her uncle's son Vasantha Kokilan and
Muthukumar and conveyed the message. Thereafter, the relatives came to
her house and went to police station and lodged a complaint (Ex.P.1). Based
on her complaint (Ex.P.1), the respondent police registered FIR in Crime No.
344 of 2011. The Investigation was taken up by the Deputy Superintendent
of Police, since the victim belongs to SC/ST community.
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4.3. Before the trial Court, to prove the charges, prosecution has
examined 17 witnesses marked 21 exhibits and 12 material objects. The trial
Court found the charges against the Accused No.2 as not proved and
acquitted him from both the charges. As far as the offence under section 386
regarding extortion of gold stud from P.W.1 and theft of cellphone of the
deceased Annalakshmi, the Court below held that the prosecution has failed
to prove the charges and hence acquitted the first accused for the offences
under sections 386 and 380 of IPC. Likewise, though the prosecution has
projected that the P.W.1 was kidnapped for the purpose of marriage, putting
the minor victim under threat, for want of evidence the charge under section
366 of IPC was also found not proved. Believing the testimony of P.W.1 in
respect of trespass into the house of P.W.1 and strangulation of Annalakshmi
using in-skirt tape (M.O.1). The 1st accused was found guilty for the offence
under sections 449 and 302 of IPC. Likewise, the evidence of P.W.1
regarding taking her away from the lawful guardian and confining her held to
be proved to attract offence under section 363 and 342 of IPC.
5. The learned Counsel appearing for the appellant would submit that
it is quite contrary to any human conduct for a person going along with the
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murderer of her mother carrying her belonging. In this case, the prosecution
has miserably failed to establish that P.W.1 was kidnapped with an intention
to marry her. The trial Court also rightly acquitted the Accused No.1 for the
said charge. Insofar as the offence under section 363 of IPC, even though,
the prosecution has not placed any evidence to prove the age of P.W.1, on
presumption that she pursuing 9th standard, her age must be only 16 years,
the trial court on presumption and assumption held that the fist accused
guilty for the offence under section 363 of IPC. Regarding criminal trespass
and charge under section 302 of IPC, the learned Counsel appearing for the
appellant submitted that there is no evidence to show that the first accused
resides near the house of the deceased and having any dispute with the
deceased Annalakshmi regarding the poromboke land, to substantiate the
motive for the murder. The witnesses for prosecution except P.W.1, are not
familiar to P.W.1 or the alleged motive.
5.1. Admittedly, the scene of occurrence is full of residences, while so,
it is unnatural for a person who has witnessed the murder of mother to go
along with the murderer without any protest or resistance. The case of the
prosecution that the first Accused called the second accused using the
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cellphone of the deceased and the second Accused came and collected the
stud of P.W.1 to buy 'Thali', where all found to be concocted story of the
prosecution and rejected by the trial Court. While so, when the substantial
portion of the prosecution was disbelieved by the trial Court and demolished,
the remaining portion has no legs to stand to convict the first accused.
5.2. The learned Counsel appearing for the appellant further submitted
that to believe P.W.1 as reliable witness, her testimony should be
un-impeccable, whereas, in this case, her witness to the occurrence itself is
highly improbable. Furthermore, her version that she went along with first
accused and stayed with him for four hours is beyond any comprehension of
a prudent person. A fact, which could be persuaded by a prudent person, in
this case, does not point towards the first accused for the death of
Annalakshmi.
5.3. The learned Counsel for the appellant would also raise doubt
about the weapon used to cause the death. He would submit that the inskirt
tape length is 176 cm and it is marked as M.O.1. It is alleged that M.O.1 has
been removed from the petty coat of the deceased, however, the ligature
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mark found in the postmortem certificate does not correlate with the alleged
weapon, namely, the inskirt tape. The rope not found on the body or near the
body, but alleged to have been recovered from a place very far off based on
the confession given by the first accused. Either, the P.W.1 had not said
anything about the rope being carried by the first accused along with him and
if she really witnessed the crime, there is no reason for omitting to say about
the rope. That apart, even according to P.W.1, her stud was given to second
accused to arrange money and buy Thali. The said stud was found in the
place hidden under the rock and alleged to have been recovered on the
confession statement of 1st accused. The stud given to the Accused No.2 was
recovered on the information given by first accused is totally improbalized.
The trial court though found the improbablity had acquitted only the second
accused but not the first accused which it ought to have done.
5.4. The learned Counsel appearing for the Appellant submitted that
the material contradiction between the evidence of P.W.1, P.W.2 and P.W.3
regarding the information conveyed by P.W.1 to the witnesses, P.W.2 and 3
about the murder is fatal to the case of prosecution. While P.W.1 had
deposed that, she was under captive of first accused till 07.00a.m. in the
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morning, P.W.2 and P.W.3 had categorically deposed that P.W.1 called them
over phone and informed about the incident in the early morning at 06.00
clock. This singular fact is sufficient to disbelieve the testimony of P.W.1.
However, unfortunately the trial Court had not taken this into consideration
stating that memory may fade and witness cannot have a photographic
memory to recall in detail as to the incident in verbattum.
6. The learned Additional Public Prosecutor submitted that dehors
certain infirmity in the evidence of P.W.1, substantial and vital portion of
P.W.1 evidence is corroborated by other witnesses, the fact remains that on
the date of occurrence, P.W.1 saw the first accused entering into the house
and Strangulating her mother. She out of fear, had gone along with the first
accused. The knife used to threaten P.W.1 was recovered, based on the
information given by the first accused in his confession statement. The
cellphone of the deceased recovered from the brother of second accused on
the information given by the second accused remains unchallenged and the
burden to prove innocence shifts to the first accused to explain how the
cellphone of the deceased came to the custody of Selvam (brother of A2).
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6.1. The learned Additional Public Prosecutor further submits that the
information received from P.W.1 as a complaint was immediately registered
by the respondent police and the FIR was registered at 9.00a.m and
forwarded immediately to the Judicial Magistrate at 10.30a.m. There is no
delay in registering the FIR and forwarding it to Judicial Magistrate and
therefore, the prosecution cannot be faulted. Regarding the contradiction of
scribe of the complaint, admittedly the complaint of P.W.1 reduced into
writing and attested by P.W.1 and P.W.3. Though there is no specific record
as to who has scribed the complaint and some contradiction is there, it does
not shake the case of the prosecution in any manner.
7. Heard the submissions made by the counsels on either side and
perused the records.
8. It is the case of homicide proved to be death due to strangulation.
The instrument alleged to have been used for committing strangulation
appears to be M.O.1, which was recovered in the place far off from the place
of occurrence. The prosecution relied upon the evidence of P.W.1 who
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claims that she and the deceased were in the house on the fateful day,
hearing the noise, she came out from house and saw that the first accused
strangulating her mother. In her complaint, she has stated that on seeing the
act of violence, she shouted and pleaded with the first accused not to harm
her mother. The first accused threatened her and put her in silence. Whereas,
in the deposition, this court finds nothing regarding her resistance or
pleading with the first accused to stop the violence. Contrarily she had
deposed that the first accused placed knife on her neck and threaten her not
to rise alarm. This may not be an apparent inconsistency of contradiction,
but it would clearly show that the conduct of the P.W.1 was not natural, for
any person who witness a murder that too murder of mother.
8.1. To add more doubt about her conduct, it is her case that she
without any resistance went along with the fist accused carrying her clothes.
The purpose for which she was asked to carry her clothes and she succumbed
to the command of the accused remains unexplained. More so, when the
prosecution has failed to recover the bag and clothes which P.W.1 supposed
to have carried along with first accused. The witness P.W.1 had not
whispered anything about the tape used for strangulation and how it was
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recovered from a place near railway station/bus stand near bush. The P.W.1
testimony conspicuously silent about the knife M.O.3 and whether the first
accused was carrying along with him the M.O.3 knife and the M.O.1 inskirt
tape, while she was in his company between 3.00a.m. to 7.00a.m.
8.2. The Prosecution has also failed to explain, how P.W.1 was able to
call P.W.2 and P.W.3 at 06.00a.m, when her specific case was that she was
under captive of first accused till 07.00a.m. In the cross-examination, P.W.1
admits that by 07.00a.m, there was human movements near AC Parai, which
gave her confidence to escape from the accused. But, she has not stated
about the persons whom she saw and any attempt to apprehend the accused.
P.W.1 in Chief-examination had said that the complaint was written by her,
whereas in the cross-examination, she admits that it was written by someone
else. P.W.2 admits that it was written by him. He also signed as an attesting
witness in the complaint. These discrepancies not only shakes the credibility
of other witnesses but also shakes the credibility of P.W.1, who is the key
witness for the prosecution.
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8.3. The trial Court had observed that the evidence of P.W.1 partly
unreliable and acquitted the second accused fully and the first accused for
certain charges. The material contradictions and lack of corroboration
renders the evidence of P.W.1 wholly unreliable. Except the evidence of
P.W.1, there is no other evidence to suspect the first accused. In the said
circumstances, conviction of the appellant based on the sole evidence of
P.W.1, which is not uncorrborated, and also contradictory and suffers
falsehood, required to be interfered with.
9. As a result of the above discussion, the judgement passed by the
learned II Additional District and Sessions Judge, Tirunelveli in S.C.No.51
of 2013 dated 18.12.2015 convicted the appellant/first accused is hereby set
aside. This Criminal Appeal against the conviction of the appellant/first
accused stands allowed. The appellant/first accused is acquitted of all
charges. Fine amount, if any, paid shall be refunded. Bail bond, if any,
executed shall stand cancelled.
[G.J.,J] [R.P., J]
03.03.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
GVN
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DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
GVN
To
1.The II Additional District and Sessions Judge,
Tirunelveli.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
Judgement made in
03.03.2025
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