Murugan, S/O.Samy Thevar, v. The Inspector Of Police
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.01.2017
CORAM
THE HONOURABLE MR. JUSTICE A.SELVAM and THE HONOURABLE MR. JUSTICE P.KALAIYARASAN Crl.A.(MD)No.437 of 2016 and CRL MP(MD)No.11361 of 2016 Murugan .. Appellant/1st Accused Vs.
State rep.by The Inspector of Police, Puliankudi Police Station, Tirunelveli District, Crime No.460 of 2012.
.. Respondent/Complainant Criminal appeal filed under Section 374 of Cr.P.C. Praying to call for records in SC No.287 of 2014 relating to the judgement dated 03.03.2015 passed by the Principal Sessions Court,Tirunelveli and to set aside the Judgement of the Conviction on the appellant/accused.
For Appellant : Mr.P.T.Ramesh Raja For Respondent : Mr.C.Ramesh Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by A.SELVAM, J.) The conviction and sentence dated 03.03.2015 passed in Sessions Case No.287 of 2014 by the Principal District and Sessions Court, Tirunelveli are being challenged in this Criminal Appeal.
2.The case of the prosecution is that the first accused by name Murugan is the husband of the deceased Kalaiselvi @ Selvi and both of them have lived in a house which situates in Gurunathan Kovil Street, Nelkattukseval and due to misunderstanding between them, with an intention to murder the deceased, on 21.11.2012, the accused has jugulated the deceased and due to his overtacts she passed away. The second accused by name Vellathuraichi has lent her support to the first accused for murdering the deceased. After occurrence, the mother of the deceased by name Poomari as defacto complainant has given a complaint to the Sub Inspector of Police and the same has been registered in Crime No.460 of 2012. The complaint alleged to have been given by the defacto complainant has been marked as Ex.P1.
3.On receipt of Ex.P1, the Investigating Officer (PW15) has taken up investigation and made arrangements for conducting autopsy on the body of the deceased and accordingly, Dr.Mallika
(PW13) has conducted autopsy and she found the following internal and external injuries:
"Body of a female lied on its back. Rigor mortis present in limbs. Facial puffiness seen. Tongue was bitten by teeth B/L. Teeth mark seen. Haemorrhagic spots seen in sub conjunctiva of both eyes. Neck edematous and on right side a curvilinear finger nail abrasion about 1.5 cm seen 4 cm below right jaw. On left side about 4 cm finger nail abrasion. 6 cm below left ear seen. On bloodless dissection of neck, haemorrhagic spots and extravasation of blood seen bilaterally. No other external injuries seen. Hyoid bone sent for expert opinion. On opening the thorax, pleural and pericardial surfaces appeared normal. (N.E) haemorrhage and areas of atelectasis seen on both side lungs. Tarden spots seen over the heart. On opening the abdomen stomach contained 20 ml of clear liquid seen.
Mucosa appeared pale, liver, spleen and kidneys appeared normal. On cut section appeared congested. Intestine was empty. Uterus appeared normal and on cut section it was empty. On opening the skull brain showed tarden spots on its surface. Superficial vessels appeared (torn). Stomach and its contents, liver, kidney, intestine are preservative were sent for chemical analysis.
4.The post-mortem report has been marked as Ex.P12. After transfer of PW15, his successor in office viz., PW16 has continued investigation and after his transfer, his successor in office viz., PW17 has continued and completed investigation and ultimately filed final report on the file of the Judicial Magistrate Court, Sivagiri and the same has been taken on file in PRC No.25 of 2014.
5.The Judicial Magistrate Court, Sivagiri after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, committed the case to the Court of Sessions, Tirunelveli Division and taken on file in Sessions Case No.287 of 2014.
6.The trial Court after hearing arguments of both sides and upon perusing relevant records has framed first charge against the first accused under Section 302 and second charge against the second accused under Section 302 r/w 34 of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried. 7.On the side of the prosecution, PWs.1 to 17 have been examined and Exs.P1 to P16 and M.Os.1 to 4 have been marked. 8.When the accused have been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against them, they
denied their complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused. 9.The trial Court after hearing the arguments of both sides and upon perusing relevant records has found the first accused guilty under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and also imposed a fine of Rs.1,000/- with usual default clause. Against the conviction and sentence passed by the trial Court, the present Criminal Appeal has been preferred at the instance of the first accused as appellant.
10.The consistent case of the prosecution is that in Gurunathan Kovil Street, Nelkattumseval village, on 21.11.2012, the first accused has jugulated the deceased by name Kalaiselvi @ Selvi and due to his overtacts, she passed away and the second accused has lent her support to the first accused. The trial Court has found the first accused guilty under Section 302 of the Indian Penal Code only on the basis of the alleged fact that the entire occurrence has taken place inside the house, where both the first accused and deceased lived together.
11.The learned counsel appearing for the appellant/first accused has meticulously contended to the effect that the occurrence has not taken place inside the house as put forth on the side of the prosecution, whereas, as per evidence given by PW3, the then injured (deceased) has been found on the date of occurrence in an isolated place of the village and subsequently, PW3 and the first accused have taken her to the hospital of PW6 and PW6 has ultimately found that the then injured (deceased) has not consumed poison and thereafter she has been referred to concerned Government hospital and therefore, the prosecution has completely changed the place of occurrence and the trial Court without considering the evidence given by PWs.3 and 6, has erroneously found the appellant/first accused guilty under Section 302 of the Indian Penal Code and therefore, the conviction and sentence passed by the trial Court are liable to be interfered with.
12.The learned Additional Public Prosecutor appearing for the respondent has contended that the specific case of the prosecution is that the entire occurrence has taken place inside the house, where both the first accused and deceased have lived together and since the entire occurrence has taken place inside the house, as per Section 106 of the Indian Evidence Act, 1872, entire burden lies upon the first accused to prove as to how occurrence has taken place. But the first accused has not proved the same and since the first accused has not discharged his initial burden, the trial Court has rightly found him guilty under Section 302 of the Indian Penal Code and therefore, the conviction and sentence passed by the trial Court do not require any interference.
13.On the basis of the divergent submissions made on either side, the Court has to find out as to whether the entire occurrence has taken place inside the house as put forth on the side of the prosecution or the occurrence has taken place in an isolated place of the village as put forth on the side of the defence.
14.It is an admitted fact that on the side of the prosecution, one Velladurai has been examined as PW3 and his specific evidence is that on the date of occurrence at about 07.00 am., he found the then injured (deceased) unconsciously in an isolated place of the village, where he has also found the first accused and subsequently both of them have taken the then injured (deceased) to PW6. The specific evidence given by PW6 is that the then injured (deceased) has been brought to his hospital and he examined her as to whether she consumed poison. After examination, it is found that she has not consumed any poison and subsequently referred to Government hospital.
15.In fact, the evidence given by PW3 is nothing but identical with the evidence of PW6. Since both PWs.3 and 6 have given identical evidence, this Court is of the considered view that the prosecution has changed the place of occurrence. Further on the basis of the evidence given by PWs.3 and 6, the Court can very well come to a conclusion that the prosecution has changed the time of occurrence also.
16.The specific case of the prosecution is that on the date of occurrence, the same has taken place inside the house, where both the first accused and deceased have lived together. But as per the evidence given by PW3, the entire place of occurrence has been changed. Therefore, it is needless to say that the prosecution has not approached the Court with clean hands. Since the prosecution has not approached the Court with clean hands, it is needless to say that the entire case of the prosecution is false.
17.As adverted to earlier, the trial Court has found the first accused guilty under Section 302 of the Indian Penal Code only on the basis that the entire occurrence has taken place inside the house, where both the first accused and deceased have lived together. In fact, the trial Court has come to the said conclusion even without considered the evidence given by PWs.3 and
6. Since the trial Court has not at all considered the evidence given by PWs.3 and 6, it is very clear that the conviction and sentence passed by the trial Court are totally erroneous. 18.Even at the risk of repetition, the Court would like to point out that in the instant case absolutely there is no evidence on the side of the prosecution so as to connect the first accused with the crime. Since there is no evidence on the side of the prosecution so as to connect the first accused with the crime, it
is needless to say that the trial Court has unnecessarily found the appellant/first accused guilty under the said Section. Therefore, viewing from any angle, the conviction and sentence passed by the trial Court are not factually and legally sustainable and the same are liable to be set aside. 19.In fine, this Criminal Appeal is allowed. The conviction and sentence passed against the appellant/first accused in Sessions Case No.287 of 2014 by the trial Court are set aside. The appellant/first accused is acquitted. Fine amount if any paid by him is ordered to be refunded forthwith. Consequently, CRL MP(MD) No.11361 of 2016 is closed.
Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar To 1.The Principal District and Sessions Court, Tirunelveli.
2.The Inspector of Police, Puliankudi Police Station, Tirunelveli District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Superintendent of Prisons, Central Prison, Palayamkottai.
+1cc to Mr.R.J.Karthick,SR.No.1998.
Mj KK/MPA/SAR1/11.1.17/5P/ 6c Crl.A.(MD)No.437 of 2016 10.01.2017