IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.664 OF 2008 Mary Xavier (A2) .. Appellant/A2 Vs. State rep. by Inspector of Police, M2 Madavaram Milk Colony Police Madavaram Chennai-600 060 .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District Sessions cum Fast Track Court, No.3, Tiruvallur, Tiruvallur District in S.C.No.161 of 2007 dated 14.07.2008. For Appellants : Mr.S. Ananthanarayanan For Respondent : Mr.Babu Muthu Meeran, APP JUDGMENT (The judgment of the Court was made by V.PERIYA KARUPPIAH, J.) This appeal is directed against the judgment of conviction passed against the 2nd accused in S.C.No.161 of 2007 by the Additional District Sessions Cum Fast Track Court, No.3, Tiruvallur, Tiruvallur District dated 14.07.2008. 2.The lower court had passed the conviction against the appellant/A2 u/s. 302 I.P.C r/w 201 I.P.C. While passing such conviction and sentence against A2, the lower court had also passed the conviction and sentence against A1u/s. 302 r/w. 201 I.P.C. 3. The case of the prosecution before the lower court was that https://hcservices.ecourts.gov.in/hcservices/ A1 was the relative of A2 and A2 was the wife of one Arulnathan and the accused A2 had illicit intimacy with A1. The deceased Sowriammal aged about 80 years was none other than the mother-in-law of A2 and the deceased was living along with A2 and her husband the son of the deceased in the house, A2 met A1 in the absence of her husband and the said illegal intimacy was known to the deceased Sowriammal and on 26.05.2006 at about 04.00 p.m at Door No.88, Assisi Nagar, Madhavaram milk depot, when the deceased Sowriammal was working in the garden, A1, with the intention to kill her with the concealed iron rod in his shirt, had attacked on the head of Sowriammal with the said rodand when she was about to prevent the same, she sustained grievous injuries on her hand and due to the injuries, she succumbed to injuries and died on the spot and thereby A1 had committed the murder of Sowriammal and A2, knowing full well that A1 had committed such offence and with intention to conceal the said offence committed by A1, A2 had expressed the reason for the death of Sowriammal that she fell down from the stairs and thereby committed the offence u/s.302 r/w.201 I.P.C. 4. P.W.1 is the brother of Arulnathan, the husband of A2. He studied law and was practising as an advocate. P.W.2 is the Judicial Magistrate who had recorded the confession statement of witness Arogya Mary u/s. 164 Cr.P.C. P.W.3 is the radiologist who had taken the x-ray of the head portion and right hand portion of the deceased Sowriammal. P.W.4 is the Doctor in Radiology in Salem Government Medical College hospital, who gave opinion on the head injury of the deceased Sowriammal. P.W.5 is the Post Mortem Doctor who had performed the autopsy of the deceased Sowriammal. P.W.6 is the P.A. to Sub-Collector of Hosur, who exhumed the body of Sowriammal from the cemetery. P.W.7 is the V.A.O who witnessed the confession statement given by A1 and also for the recovery of iron rod through Seizure Mahazar through the confession leading to recovery in Ex.P9. P.W.8 is the Observation Mahazar witness and P.W.9 is the son in law of the deceased Sowriammal. P.W.10 is the Head Constable who took video of the autopsy. P.W.11 was present along with P.W.1 witnessing the confession statement given by A1 and the Seizure Mahazar Ex.P.9. P.W.12 is the Sub Inspector of Police who registered the F.I.R on the complaint given by P.W.1. P.W.13 is the Investigating Officer who had proceeded with the investigation to some extent. P.W.14 is the Forensic Doctor who had given opinion regarding the skull belonging to the deceased Sowriammal. P.W.15 is the Investigating Officer who completed the investigation and filed the charge sheet. 5. According to the evidence of the prosecution witness, A2 was the wife of Arulnathan who was the brother of P.W.1. On 26.05.2006, at about 06.00 p.m. P.W.1 received a phone call through the phone available in the next house informing that his mother was dead and P.W.1 has also received yet another information from A2 that her mother fell down from the stairs leading to the first floor and died due to injuries. A2 had also informed that her husband Arulnathan https://hcservices.ecourts.gov.in/hcservices/ went outside along with his elder son at the time of occurrence. Thereafter at about 11.00 p.m Arulnathan his brother had informed the death news of then mother and while he was weeping for the death of his mother, P.W.1 had instructed his brother Arulnathan to bring the body of mother to the native place for cremation. Accordingly when the body of deceased Sowriammal was brought and washed for cremation, P.W.1 could find dressing tied on the head a cloth tied on her right hand. P.W.1 has also informed his brother to be careful and if necessary to vacate the house and come to the native place. The deceased Sowriammal was very much aged and she sustained injuries on her head and right hand. After the cremation was over they left and on 19.06.2006 in the morning by 06.00 a.m, he received a phone call that P.W.1's brother Arulnathan was murdered and the jewels were stolen away from the house of the said Arulnathan and A2 was telling that the body was taken to hospital. When he visited the hospital he could see autopsy was performed over his body and after completion he has received the body of his brother and cremated there. Thereafter he could see through the papers and television that A2 was having illicit intimacy with A1 and because of the said relationship the brother of P.W.1 was murdered by the accused. Immediately P.W.1 thought and strongly suspected that A1 and A2 should have caused the murder of his mother Sowriammal also on 26.05.2006 and therefore he had given complaint on 22.06.2006 to the police. 6. Based on the complaint given by P.W.1, P.W.12, the Sub Inspector of M2 - Madhavaram Milk Depot Police Station had registered the F.I.R in Cr.No.337/2006 and the investigation has been commenced by the Investigating Officer. The Investigating Officer immediately proceeded to the spot and prepared sketch Ex.P.17 and prepared Observation Mahazar Ex.P.10 and had applied for exhuming the body of Sowriammal which was cremated in the cemetery and accordingly the body was exhumed on 23.06.2006 and the autopsy was performed by P.W.5 - Doctor in the presence of P.W.6 - P.A. to Sub Collector, Deputy Tahsildar, V.A.O and Village Assistant. Accordingly after the autopsy was done by P.W.5 Post Mortem Certificate- Ex.P7 was issued. The Investigating Officer had arrested A1 and had recorded confession statement and seized the iron rod in the presence of two witnesses P.W.7 and P.W.11. Skull taken from the dead body of Sowriammal was retained for further forensic evidence and the radiology report on the said skull was obtained from P.W.3 and P.W.4. Subsequently requisition was made to Chief Judicial Magistrate for nominating the Magistrate to record the confession statement of the witness Arogya Mary and P.W.2 was nominated for that purpose and the confession statement of Arogya Mary was recorded on 04.07.2006. The biological report was received on the articles taken from dead body as well as the weapon and thereafter the Investigating Officer had completed the investigation and filed the charge sheet against accused A1 and A2 u/s. 302 I.P.C r/w. 201 I.P.C respectively. 7. The said final report was taken on file and was committed to https://hcservices.ecourts.gov.in/hcservices/ Sessions court and in turn it was made over to Fast Track Judge No.3, Tiruvallur, for disposing the case in accordance with law. Charges have been framed against accused A1 and A2 and the prosecution had examined witnesses P.W.1 to P.w.15 and produced Ex.P.1 to Ex.P.20 to substantiate the case of the prosecution. The accused have produced Ex.D1- Mahazar prepared for the recovery of the iron rod. 8. The lower court after going through the evidence adduced on the side of prosecution and the documents produced had questioned the accused u/s. 313 Cr.P.C to which they have flatly denied and produced a document. Thereafter it heard the arguments advanced on either side and came to the conclusion that both the accused are guilty of murder in causing the death of Sowriammal and convicted and passed the sentence u/s.302 I.P.C to undergo life imprisonment and also to pay a fine of Rs.50,000/- each and in default to pay the fine amount to undergo four years simple imprisonment, and u/s.201 I.P.C to undergo two years rigorous imprisonment and also to pay a fine of Rs.3000/- each and in default to under go six months simple imprisonment each and the sentence imposed in this case shall run concurrently with the sentence in S.C.No.160/2007. 9.Aggrieved against the said conviction and sentence passed by the lower court against A2 the appeal has been preferred and it has been brought before us. 10. The learned counsel for the appellant/A2 would submit in his argument that the lower court had not properly appraised the evidence and it had wrongly come to the conclusion if convicting A2 without any proof against A2. The lower court had ended in conviction on surmises and conjunctures. He would, submit that there was no evidence against A2 to connect her in the crime. The alleged illicit intimacy of A1 and A2 was not true and the actual relationship of A2 with A1 was only junior paternal aunt. He would further submit that the prosecution had neither proved the illicit intimacy nor proved the screening of the evidence by the appellant. He would further submit that the evidence adduced in S.C.No.160/2007 was transposed by the lower court as evidence in this case which is not legally permissible and each case has to be decided on the evidence let in by the prosecution in the particular case. The decision reached by the lower court on the evidence of a witness who was not cross examined or given any opportunity for cross examination, would rendered great misconception of justice. He would further submit in his argument that the uncorroborated 164 Cr.P.C statement of A2 cannot be used as evidence in this case and therefore the conviction ended against A2 was illegal. He would further submit in his argument that 164 Cr.P.C statement of P.W.2 cannot be used as evidence in the absence of the said witness Arogya Mary was examined in court and said statement could have been used only for contradicting her evidence. He would further submit that the basic principle of 164 Cr.P.C statement would not become evident in this case and that can also be used for the https://hcservices.ecourts.gov.in/hcservices/ purpose of corroborating evidence of the maker. He would also submit that the lower court had not referred to any points mentioned in the written arguments filed by the appellant before the lower court. The conviction of appellant without any legal evidence is not sustainable and the lower court had presumed erroneously the guilty against appellant/A2. Since the defence has not challenged the exhuming of the body and other particulars submitted on the side of prosecution, the lower court had wrongly come to the conclusion that the circumstantial evidence were against the appellant. Lower court had also failed to find any confession statement given by A2 and any recovery has been made on such confession statement. 11. Learned counsel for the appellant/A2 would therefore insist for the judgment of conviction and sentence passed against A2 is erroneous and against the principles of criminal law and therefore it has to be set aside and the appeal has to be allowed. 12. On hearing the learned Additional Public Prosecutor and after giving anxious consideration to the arguments along with the submissions of the learned counsel for the appellant, this court would see that the case of the prosecution regarding the murder of the deceased Sowriammal was rested only on circumstantial evidence. The F.I.R has been registered only on 22.06.2006 whereas the occurrence had taken place on 26.05.2006. According to the complainant, he could come to know about the mischief of the plot drawn by the A1 and A2 only after the death of his brother, the husband of A2 and therefore the complaint had to be given after a long gap. In view if the delay caused in preferring complaint the prosecution case is purely resting upon the circumstantial evidence, since long period have gone from the date of occurrence till the date of filing of complaint. In these circumstances, it is rightly proceeded by the investigating agency to exhume the body of deceased Sowriammal and autopsy was conducted. According to the prosecution evidence, autopsy was conducted on 23.06.2006 and from the Post Mortem Certificate and the Doctors evidence, we could see that the three fingers of the deceased Sowriammal were broken and there was a bandage in the head as well as in the hand as found in the body. In these circumstances, the submission of learned Additional Public Prosecutor that there should be some violence against 80 years old woman Sowriammal for the purpose of causing her death. If really she fell down from the stairs as alleged by A2 to P.W.1 the fingers should not have been broken and the possibility of hitting the head has to be decided on experts opinion. However the Doctor's evidence would go to show that the injury caused on the head of Sowriammal cannot be on her falling from the stairs. In the Post Mortem Certificate, we could see that there was no fracture on the skull. However the brain was injured due to the hit on the top of the head of Sowriammal and the brain was affected and due to the said injury and shock she was dead. Post Mortem Certificate would disclose therefore. We could see that injury on her head had caused the death https://hcservices.ecourts.gov.in/hcservices/ of deceased Sowriammal. Whether the A1 and A2 were responsible for the cause of death of Sowriammal have to be seen out of evidence produced by the prosecution on P.W.1 and P.W.2 and other circumstantial evidence. No doubt the weapon said to have been used on the incident was seized through the confession leading to recovery. P.W.7 and P.W.11 proved the confession statement leading to recovery and the Seizure Mahazar were marked on the side of the prosecution as Ex.P.9. In these circumstances, the lower court had drawn the evidence from the confession statement given by A2 in S.C.No.160/2007, a case in which the husband of A2 was assassinated by A1 similar to the crime in this case. She was said to have given the confession statement that she had plotted along with A1 to kill the deceased Sowriammal. The said confession statement given by A2 in yet another case namely in S.C.No.160/2007 had arisen from out of occurrence. Despite if the court wants to rely upon such evidence for the purpose of appreciating such evidence, witnesses to prove those documents should have been examined and be placed for cross examination on the side of the accused. Such opportunity should have been given by the lower court before for relying upon such 164 Cr.P.C statement given by accused in some other case in respect of any crime committed by her in this case. Such as 164 Cr.P.C statement given by Arogya Mary was produced as Ex.P.2 in this case on examination of P.W.2 who recorded the same. It cannot also be used as a piece of evidence by the lower court unless the said deponent was examined and it could be used for corroboration of her evidence or for contradicting her evidence. Therefore the examination of witness namely Arogya Mary on the side of prosecution is essential for relying upon her 164 Cr.P.C statement. If witness had turned hostile or has not supported 164 Cr.P.C statement, such statement given by the witness given u/s. 164 Cr.P.C can be used in evidence, for concluding the commission of offence against the accused. These circumstances would show that the lower court had grossly violated the principles of criminal law. 13. At this juncture, learned Additional Public Prosecutor would submit that same principle is applicable for A1 also and the prosecution has to adduce proper evidence for proving the case in which A1 and A2 are involved. 14. Considering the submission of learned Additional Public Prosecutor, we are of the considered view that when the judgment passed by the lower court against A1 and A2 is considered to be not in accordance with law an opportunity should have been given to the prosecution and the defence for providing evidence afresh in this case, either to prove the criminality of the accused and opportunities to be given to defence for cross examining such witnesses of prosecution are of the considered opinion. In these circumstances, we are of the considered opinion that it has become necessary to set aside the judgment passed by the lower court in convicting both A1 and A2 u/s. 302 I.P.C r/w.201 I.P.C and also https://hcservices.ecourts.gov.in/hcservices/ passing the sentence of life imprisonment and to pay the fine and also to undergo rigorous imprisonment for offence under 201 I.P.C and also to pay the fine in default to undergo sentence and accordingly the case is ordered to be remitted back to the learned District Sessions division,Tiruvallur, Tiruvallur District for retrial after giving opportunity to both parties to adduce fresh evidence. Therefore, it is necessary for this court to set aside the conviction and sentence passed against A1 also, even though he has not preferred any appeal. The learned District Sessions Judge, Thiruvallur is directed to take the case on file and assign the same number and after giving notice to both the parties to proceed with trial and to examine the witnesses again and to pass judgment in accordance with law. 15. With the above observation, the appeal is ordered accordingly. kpr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Additional District Sessions cum Fast Track Court, No.3, Tiruvallur, Tiruvallur District 2. Inspector of Police, M2 Madavaram Milk Colony Police Station Madavaram Chennai-600 060 3. The Public Prosecutor, High Court, Chennai. 4. The Superintendent, Women's Central Prison Puzhal Chennai. 5. The Section Officer, Crl.Section, High Court Madras. Crl.A.No.664 of 2008 AKR(CO) VC(12.11.2009) https://hcservices.ecourts.gov.in/hcservices/