B A I L S L I P 1.Kala @ Chandrakala, 2.Arthanari Gounder, The above said Appellants/Accused 1 & 2 were directed to be released on bail as per order of this Court dated 10.12.2007 and made in Crl.MP.No.1/07 in CA.1022/07 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.1022 OF 2007 1.Kala @ Chandrakala .. Appellants/ 2.Arthanari Gounder Accused 1 & 2 Vs. State represented by Inspector of Police, Thingalur Police Station, Erode District (Crime No.51 of 2005) .. Respondent/Coimplainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned First Additional Sessions Judge, Erode made in S.C.No.98 of 2007, dated 31.10.2007. For Appellant : Mr.N.Manoharan For Respondent: Mr.N.R.Elango, APP - - - - JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the First Additional Sessions Judge, Erode made in S.C.No.98 of 2007, whereby appellants two in number stood charged, tried and found guilty under Section 302 read with 34 IPC and 201 IPC. Originally there were three accused and since the third accused was absconding, the case was split up and the trial proceeded in so far as the appellants herein https://hcservices.ecourts.gov.in/hcservices/ are concerned and the trial court awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months S.I., each under Section 302 read with 34 IPC and also to undergo one year simple imprisonment each under Section 201 IPC. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a) P.W.11 on 20.5.2005 after seeing the gunny bag with a dead body under the bridge, informed to P.W.1, the Village Administrative Officer. PW1, Village Administrative Officer proceeded to the spot at 1 p.m. along with his assistants and found the dead body of 30 years old male. b)Thereafter, P.W.1 immediately proceeded to the respondent police station and gave a complaint Ex.P.1 and immediately the Sub-Inspector of Police rushed to the scene. On 20.5.2005, the Inspector of police examined PW1 and recorded the statement. The case was taken up for investigation. c) PW4 is the Sister of the accused. PW4 is living at Salem. A1 is the wife, A2 is the father of the first accused, A3 is the nephew of the first accused. After marriage, the deceased was living at Kuppandanpalayam. The second accused insisted the deceased to purchase 4 acres of land adjacent to his properties and asked him to go and live in his native place. Thereafter the deceased was living with his wife, the first accused at Vilaralimedu, Kavindapadi. They got only one son and one daughter. The deceased used to consume liquor and also used to enter into number of agreements for sale of the properties and received part of the consideration by which A1 and A2 were aggrieved. The deceased was in the habit of visiting his sister PW4 at Salem, once in a week. He was also talking to her over phone atleast once in two days. At last, on 12.5.2005, deceased Murugesan gone to the house of PW4 and stayed there for a full day and thereafter returned. In the meanwhile, Since PW4 did not get any phone call from the deceased, came to the house of the deceased on 31.5.2005 and when she arrived near the house of the deceased, the daughter of the deceased asked PW4 about her father and immediately PW4 asked the first accused about the deceased. The accused replied that he had actually gone to her house only. At last, she made a confession to PW4 that along with A2 and the absconding accused Prakash, she committed murder of the deceased. Further,she made a request not to divulge the same to any one else and made an appeal to consider sympathetically and further she was prepared to transfer the title of certain properties to the children of Murugesan. d)Thereafter, PW4 went to the police station and gave a complaint and the same is marked as Ex.P.2. e).On the basis of the complaint given by PW1, a criminal case was registered in Crime No.51 of 2005 for the offence punishable under Section 302 IPC on 20.5.2005 by P.W.24, the Sub Inspector of Police, and the investigation was pending. The printed https://hcservices.ecourts.gov.in/hcservices/ FIR is Ex.P.26. The Inspector of Police deputed PW22 to assist the doctor to conduct postmortem. f)P.W.20, the Doctor attached to the Government Hospital, Gobichettipalayam, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has given a categorical opinion that since the dead body was at the decomposed stage, he could not fix the cause of death. The postmortem certificate is marked as Ex.P.14. g. While pending the investigation, PW.26, the Investigation officer caused the arrest of the first accused and she gave a confessional statement and the admissible portion of the confessional statement which is marked as Ex.P.6. Following the same, she produced M.O.6 Motor Bike and M.O.17, Nylon Saree. Both were recovered under two independent mahazar.Thereafter, A2 was also arrested. Further, they were sent for judicial remand.He submitted a requisition to the Magistrate concerned to send the propertie for chemical analysis.He also submtited another reqisition to the Magistrate for conducting super-imposing test to identify the deceased which resulted in Ex.P.20, the Chemical report, Ex.P.21 and 22, the Serologist reports and Ex.P.25 the Hyoid Bone report. On completion of the investigation, PW.27, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 27 witnesses and also relied on 29 exhibits and 22 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined, but one document was marked Ex.D1. The court below heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty as per the charge of murder and awarded life imprisonment, which is the subject matter of challenge before this court. 4. Advancing arguments on behalf of the appellant, Mr.Manoharan, learned counsel would submit that in the instant case, the occurrence according to the prosecution has taken place on 17.5.2005. A1 along with A2 and other absconding accused Prakash has committed the murder of her husband and put the dead body in a gunny bag and threw it on a land. In order to substantiate the charges levelled against the accused, the prosecution had no direct evidence to offer. It relied upon only circumstantial evidence. Firstly,the crcumstantial evidence of the prosecution was that the first accused had given an extra judicial confession to PW4, her sister-in-law on 31.5.2005. It was a case where the prosecution came out with a story that the occurrence had taken place on 17.5.2005, but the extra judicial confession alleged to have been given on 31.5.2005 and thus there was a long interval and also it could be seen from the available materials that the relationship of https://hcservices.ecourts.gov.in/hcservices/ PW4 with the first accused was strained. Under such circumstances, it is highly a matter of surprise that the first accused came forward to make any confessional statement to PW4. Apart from that, it could be seen that PW4 and the deceased used to talk over phone atleast once in a few days. In the instant case, there was a interval for nearly fifteen days, there was no phone call at all from the deceased. The only witness spoke about the fact was PW15, one Subayal who did not support the case of the prosecution. When there was a long interval of fifteen days. there was no phone call at all, the conduct of PW4 was that she came to the house of the deceased and at that time, the first accused came forward to give a confessional statement, cannot be believed. Added further, in the instant case, except the so called extra judicial confession,there was no evidence available at all. Further, in the instant case, following the confessional statement given by the first accused to PW4, the Investigation Officer produced two material objects one is M.O.6, Motor Bike in which the dead body was actually transported and also M.O.17, Nylon Saree with which the death was caused. Since the cause of death could not be fixed, the recovery of these materials pursuant to the confessional statement was of no avail to the prosecution case. Under these circumstances, no way the prosecution brought home the guilt of the accused. 5. Added further learned counsel that in the instant case, the motive which was attributed for the heinous crime of murdering the husband by the first accused was feeble and flimsy and in so far as the second accused was concerned, the prosecution had no evidence at all. The trial Court has also taken in his support the provision under Section 106 of the Evidence Act by stating that the first accused happened to be the wife of the deceased and therefore she should have been a special knowledge about the relevant factors, but she has not divulged anything and hence it can be taken against her. Such view taken by the trial court was erroneous. Hence, the prosecution has miserably failed to prove its case. Hence, the appellants are entitled to acquittal. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that the dead body of Murugesan, the husband of the first accused was found in a gunny bag on land. The dead body was identified. After the dead body was identified, enquiry was made by the Investigating Officer. After the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.20, the Doctor, who conducted autopsy on the dead body was unable to fix the cause of the death. Though the postmortem doctor was unable to fix the cause of death, the prosecution was able to show that it was the homicidal death and it was not the case of the prosecution that the deceased has committed suicide. The fact that the deceased died out of homicidal violence was never disputed by the appellants before the trial court and hence it has got to be recorded so. https://hcservices.ecourts.gov.in/hcservices/ 8. In order to substantiate the charges levelled against the appellants it is true that the prosecution had no direct evidence to offer. The Court must follow certain principles of law. In a case like this, the prosecution must able to place and prove necessary circumstances pointing to the guilt of the accused and also pointing to the fact that except the accused, no one could have committed the crime. The Court is satisifed that after thorough analysis of the evidence, the prosecution had brought home the first accused in the instant case. The occurrence had taken place on 17.5.2005 at about 7.30 p.m. A1 was the wife of the deceased. Both A1 and decreased were living along with their children during the relevant point of time.It is not the case of the accused before the trial Court that he was away or they were not living together. Under such circumstances, one would reasonably accept that A1 would speak how the death of her husband has happened. From the evidence avialable, it can be seen that PW4 is the sister of the deceased. She was living at Salem. Lastly, the deceased visited her sister at Salem on 12.5.2005 and stayed for a day. Then he returned to his house and the occurence had taken place on 17.5.2005. According to PW4, since she did not get any phone call, she made a visit to the house of the deceased and at that time, the daughter of the deceased came nearer to her and asked about her father.Immediately PW4 asked the first accused about the deceased. But, she gave an evasive answer stating that he went to her house only at Salem. At last, she came forward to give a confessional statement narrating the crime. It is pertinent to point out that it was PW.11 who first saw the dead body has brought to the notice of Village Administrative Officer who in turn gave a complaint Ex.P.1 to the respondent police station and on the strength of which, a case came to be registered in Crime No.51 of 2005 on 20.5.2005 itself. The investigation was pending. In the intervening circumstances, the extra judicial confession was made by the first accused to PW4. Immediately PW4 went to the police station and she has also gave a report Ex.P,2. Following the same, the investigator arrested the first accused and at that juncture, the accused came forward to give confession voluntarily and pursuant to which, she produced 2 Mos., first is M.O.6, Motor Bike which was used for transporting the dead body to the place where it was actually placed and also M.O.17, Nylon Saree which according to the accused was used for the purpose of causing death of her husband. Now at this juncture, it is pertinent to point out that if not A1 divulged the truth to PW4, the investigator would not have proceeded further or the act of the first accused could not have come to the knowledge of the respondent police. The contention of the learned counsel that the relationship of PW4 and the first accuseds were strained and hence accused could not have come forward to divulge such a heinous crime to PW4, cannot be accepted. Nowhere it is stated that they were in enimical term. Actually PW4 used to visit his brother's house. The deceased also visited PW4's house at salem. It is true that actually there was difference of opinion between PW4 and the first accused, since PW4 also joined her brother in signing the sale agreements, It did not mean that https://hcservices.ecourts.gov.in/hcservices/ PW4 was not only in enimical term with the first accused, but there was also strained relationship between them. A comment was made by the learned counsel that PW4 did not visit her brother's house for fifteen days, though she did not get a call from him. It is true that from the evidence it is clear that she used to get a phone call. She categorically said that she visited her house lastly on 12.5.2005 and since he did not make any phone call, there arose necessity for her to visit the deceased brother's house on 31.5.2005 because of which she came on 31.5.2005. when she came and questioned the first accused, she made confessional statement to the first accused. Before accepting any extra judicial confession, the Court must apply two tests. First, to whom and under what circumstances extra judicial confession was made and secondly whether the evidence of person to whom extra judicial confession made, inspires confidence of the Court. In the instant case, extra judicial confession was made by A1 to PW4, her sister-in-,law that too, at the first instance after so many queries made. Secondly the evidence of PW4 would clearly indicate that it inspires confidence of the trial court as well as this Court and the trial court accepted the evidence rightly too. Under such circumstances, the Court is of the considered opinion that the prosecution had brought home the guilt of the first accused and there was sufficient motive for her to do the crime. The deceased was a drunkard and that he used to execute the sale agreements in favour of third parties which are deteimental and prejudicial to the interest of the family. The evidence available could not only proved the motive, but also by placing sufficient circumstance proved that it was the first accused who has committed the crime of murder of his husband. 8.In so far as A2 is concerned, the Court noticed that there is nothing worth mentioning to connect him with the crime. Therefore, he has to be acquitted of the charges. 9. In so far as A1 is concerned the prosecution has proved that it was she who caused the death of her husband by screening the evidence and hence the trial Court is perfectly correct in giving a finding that the first accused is guilty of the offence punishable under Section 302 and 201 IPC and awarded punishment as referred to above. Hence, the Court is unable to see anything to disturb the judgment of the trial Court factually or legally.Hence,in sofaras A1 is concerned.The appeal fails and the same is dismissed . It is reported that the appellant is on bail and hence the learned trial Judge shall take steps to secure her presence and commit her to prison to undergo the remaining period of sentence. 10. In so far as A2 is concerned, the appeal is allowed and the he is acquitted of the charges. .Accordingly, the judgment of conviction and sentence imposed on the second appellant by the trial court is set aside. The bail bond, if any, executed by him shall stand terminated and the fine amount, if any paid by him is ordered to be refunded to him. Accordingly, this criminal appeal is allowed. https://hcservices.ecourts.gov.in/hcservices/ 11.In the result, the criminal appeal is dismissed in respect of first accused and the same is allowed in respect of second accused. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The First Additional District Sessions Judge, Erode 2.Do Through The Principal Sessions Judge, Erode. 3.The District Munsif cum Judicial Magistate, Perundurai. 4.The Chief Judicial Magistate, Erode. 5.The District Collector, Erode. 6.The Director General of Police, Mylapore, Madras 104. 7.The Superintendent, Central Prison, Vellore. 8.The Superintendent, Central Prison, Coimbatore. 9.The Inspector of Police, Thingalur Police Station, Erode District 10.The Additional Public Prosecutor, High Court, Madras. 11.The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr. N. Manokaran, Advocate SR No.26000 KS(CO) SR/17.7.2009 CRL.A.NO.1022 OF 2007 https://hcservices.ecourts.gov.in/hcservices/