Bail Slip The Appellant/Petitioner/Accused No.2 namely Ragila, W/o.Shahul Hameed was directed to be released on bail as per the order of this Court dated 23.10.2007 in Crl.M.P.No.1 of 2007 in Crl.A.No.563/2007 on the file of this Court. The Appellant/Petitioner/Accused No.2 namely Nawaz,S/o.Kaseem was directed to be released on bail as per the order of this Court dated 1.8.2002 in Crl.M.P.No.1 of 2007 in Crl.Appeal No.599/2007 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-1-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.No.563 of 2007 Ragila .. Appellant in CA 563/2007/Accused No.2 Nawaz .. Appellant in CA 599/2007 vs State rep. By Inspector of Police G1 Police Station Ooty, The Nilgiris Crime No.35/03 .. Respondent in CA 563/2007/Accused No.2 State represented by Inspector of Police Udhagamandalam Town West Police Station Crime No.221 of 2002 Nilgiris District .. Respondent in CA 599/2007 Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Sessions Judge of Nilgiris at Udhagamandalam in S.C.No.10 of 2005 dated 11.6.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.Kumar Talrejaa in CA 563/2007 Mr.John Satyan for Mr.K.P.Ananthakrishna in CA 599/2007 For Respondents : Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals namely C.A.No.563/2007 by A-1 and C.A.No.599/2007 by A-2. These two appeals challenge a judgment of the Sessions Division, Udhagamandalam, made in S.C.No.10 of 2005 whereby the appellants herein stood charged under Sections 302 read with 34 and 201 of IPC, tried, found guilty as per the charges and awarded life imprisonment and 3 years Rigorous Imprisonment along with a fine of Rs.2000/- and default sentence respectively. 2.The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.6 is the father of the deceased Sahul Hameed. P.Ws.7 and 20 are the sons of P.W.6. A-1 is the wife of the deceased. A-1 and the deceased were living along with their two children in Willow Bond Road, Udhagamandalam. The deceased was working in the Government Higher Secondary School, Annikkorai, where P.W.8 was also working during the relevant time. P.W.9 was also working in the said school. P.W.12 was the typist in that school. P.W.28 was the Headmaster of the said school. P.W.13 was also working as a teacher in the said school. (b) On 29.9.2002, P.W.13, the deceased and 16 others went on a tour to Calcutta. At Calcutta, the deceased purchased M.O.1, T.Shirt, which was worn by him at the time of occurrence. P.W.19 was running a karate School in which two of the children of A-1, and the deceased were put for training. At that time, A-2 was also taking training. In that, A-2 developed illicit intimacy with Ayisha Siddiqa, the first daughter of A-1. A-2 had often visited the residence of A-1 in order to meet his love. At that time, he developed illicit intimacy with A-1. This was brought to the knowledge of the deceased by P.W.17, a domestic servant. There often arose quarrel between the spouses. (c) On 20.10.2002 at about 9.00 A.M., the deceased, his wife A-1 and their children were all in the house. There was a quarrel. At that time, A-2 was in the upstairs. On seeing this, he intervened and asked the deceased not to quarrel, but the quarrel further continued between A-1 and the deceased. A-2 suddenly slapped on the cheeks of the deceased. Thereafter, A-2 and A-1 joined together and https://hcservices.ecourts.gov.in/hcservices/ attacked him. When the deceased swooned, immediately they throttled him by using a towel, M.O.4. Then, they put the dead body in M.O.8, barrel, of which M.O.9 was a lid, and they poured kerosene and put fire. But, they did not see it was properly burnt. Then, they purchased firewood (sticks) from the shop of P.W.30, and further they attempted to fire, but, the dead body became charred half. Immediately, A-2 took M.O.10, Maruthi car, belonging to P.W.21, and the dead body was put in a gunny bag and was transported in that car by both the accused. It was actually left near Kallatty Check Post. P.W.2 who found the dead body, went over to Kallatty Police Station and gave Ex.P1 report, on the strength of which a case came to be registered by P.W.27, the Sub Inspector of Police, in Crime No.221 of 2002 under Sec.302 of IPC. The printed FIR, Ex.P15, was despatched to the Court. (d) The investigation was taken up by P.W.32, the Inspector of Police, attached to Kallaty Police Station, who proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and a rough sketch, Ex.P26. The photographs of the dead body were taken which are marked as Ex.P12 and the negatives are Ex.P13. Then, the Investigator conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P27. Thereafter, the dead body was sent to the Government Hospital for the purpose of postmortem. (e) P.W.22, the Civil Assistant Surgeon, attached to the Government Head Quarters Hospital, Uthagamandalam, on receipt of the requisition, conducted autopsy on the dead body on 24.10.2002, and he gave his report, Ex.P11, the postmortem certificate, to the effect that the deceased would appear to have died of injury to vital organ brain and shock due to extensive burns. (f) Further, the skull and pelvic bone were actually taken. The Investigating Officer gave a requisition to the Judicial Magistrate, Udhagamandalam, to send them for chemical analysis. Accordingly, they were forwarded, which brought forth Ex.P40, the chemical analysis report, regarding the skull and pelvic bone. (g) On 21.10.2002, A-1 informed to P.W.12, the typist, that her husband was on leave medically for a period of 10 days. This was also recorded in the school attendance register, Ex.P19. Thereafter, P.W.29 also asked about the whereabouts of the husband of A-1. She informed him that he has gone over to Salem for taking treatment. Even the daughters of the deceased namely A-3 and A-4, who were students of Bethelehem School, did not attend the school. The elder daughter did not attend school from 19.12.2002 to 2.11.2002, and the second daughter did not attend school from 21.10.2002 till 2.11.2002. When it was enquired, they were informed by A-1 that they also accompanied the father to Salem. The same is also borne by the attendance register of that school, marked as Ex.P16. (h) Pending the investigation, on 3.12.2002 A-1 and A-2 appeared before P.W.8, and A-1 made an extra-judicial confessional statement. The same was recorded, and Ex.P4 is the said statement. Thereafter, P.W.8 produced both of them before Kallatty Police Station. The Investigating Officer recorded the confessional statements voluntarily given by them. Exs.P22 and P23 are the admissible parts of their confession respectively. Pursuant to the same, A-1 produced M.O.8, barrel, and M.O.9, lid, which were recovered under a cover of https://hcservices.ecourts.gov.in/hcservices/ mahazar. A-2 also produced M.O.12, kerosene can, and M.O.13, partly burnt firewood, which were recovered under a cover of mahazar. They were sent for judicial remand. (i) On 11.12.2002, the confessional statement given by Ayisha Siddiqa was recorded, pursuant to which M.O.11, the remaining part of T.Shirt, produced by her, was recovered under a cover of mahazar. The Investigating Officer examined the other witnesses and recorded their statements. At that juncture, it was found that it was a case which should have been proceeded by the respondent police station. Then, the case was transferred to the respondent police, and the crime number was given as 35/2003. The further investigation was taken up by P.W.33, the Inspector of Police, who perused the records, and on completion of investigation, he filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 33 witnesses and also relied on 49 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced, scrutinised the materials available and found the appellants guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellant/A-1 in C.A.No.563/2007, the learned Counsel would submit that in the instant case, the prosecution had no direct evidence to offer; that it relied upon certain circumstances; that the circumstances which were placed, have not been proved; and that those circumstances were neither sufficient nor pointing to the guilt of the accused. 5.The learned Counsel would further submit that according to the prosecution, the occurrence has taken place on 20.10.2002, and A-1, A-2 along with the two children of the accused and the deceased were all available in the house, and the occurrence has taken place in the morning hours; that in and around the place, number of houses were situated; but, no one independent witness has brought forth true state of affairs; that according to them, he was strangulated, and the dead body was found in a room, and kerosene was poured, and he was set fire, and it did not burn fully, and then, they put the firewood, and in a charred condition, the dead body was taken out, and it was actually put in a gunny bag and transported in a Maruthi car by A-1 to A-4, and they took it to Kallatty Check Post and left the dead body there; and that now, at this juncture, it is pertinent to point out that the prosecution has miserably failed to bring home the nexus between any one of the accused and the crime in question. 6.The learned Counsel would add that the occurrence has taken place on 20.10.2002; that it is pertinent to point out that the dead body was found by P.W.1 only on 23.10.2002; that it was he who went to the police station and gave a complaint, and the dead body was found in a charred condition; that immediately, the case was https://hcservices.ecourts.gov.in/hcservices/ registered under Ex.P15, the FIR, directly under Sec.302 of IPC, and it was taken up for investigation; that following the inquest, the dead body was subjected to postmortem, and skull and pelvic bone were also taken, and the skull was subjected to superimposition test; that the photographs were also recovered, and they were also sent; that the final opinion that was canvassed would clearly indicate that the expert could not fix that it was the skull of the deceased Sahul Hameed, and thus, the identity of the dead body though challenged by the appellants before the trial Court, the prosecution was unable to prove the same. 7.It is further added by the learned Counsel that in the instant case, the prosecution mainly relied upon the extra-judicial confession alleged to have been given by A-1 to P.W.8 on 3.12.2002 i.e., after 40 days; that there is no reason why A-1 chose P.W.8 and that too after a period of 40 days, to go and give a confessional statement as one placed before the trial Court and marked as Ex.P4; that it is pertinent to point out that in the instant case, what were all found in the extra-judicial confession alleged to have been recorded, was not at all corroborated by any other piece of evidence; that in the case on hand, originally the case was registered by Kallatty Police Station in Crime No.221/2002 directly under Sec.302 of IPC; that it remains to be stated that the occurrence has not taken place within Kallatty Polie Station jurisdiction, and if to be so, the case should not have been registered there; that even if a mistake is committed by the Sub Inspector of Police by registering the case, the case records should have been directly transferred to Udhagamandalam Town West Police Station within whose jurisdiction the occurrence has taken place, but it is curious that P.W.8 has recorded the extra-judicial confessional statement and has also produced both the accused before Kallatty Police Station who had no jurisdiction at all; that apart from that, P.W.32, the Inspector of Police of that Police Station, has also recorded the confessional statement of A-1 and has further proceeded to recover the material objects; that it is to be pointed out that the whole investigation was done by the Police Officer who had no jurisdiction to do it; that further, at the end, it was transferred to Udhagamandalam Town West Police Station who had the actual jurisdiction; and that under the circumstances, it is a case where the Police Officer with knowledge that he had no jurisdiction, has acted, and all records have been manipulated for the purpose of suiting the prosecution case. 8.The learned Counsel would further add that in the instant case, so long the prosecution is unable to show or prove that the dead body was that of the deceased and also could not prove the death of the husband of A-1, merely because of the absence of A-1's husband, it cannot be inferred or presumed that A-1 has murdered her husband; that it is true that A-1's husband is absent; but, it did not mean that he died or he has been murdered by A-1 along with A-2; that in the instant case, the prosecution has miserably failed to prove the identity of the dead body, and the extra-judicial confession alleged to have been made was not worthy to be accepted; that apart from that, a wrong investigation has been made; that all would go to the root of the matter, and hence she is entitled for https://hcservices.ecourts.gov.in/hcservices/ acquittal in the hands of this Court, which has not been done by the trial Court. 9.The learned Counsel also brought to the notice of the Court the evidence of the postmortem Doctor that he gave a fresh postmortem certificate as the original postmortem certificate given by the Doctor to the Investigating Agency was misplaced. 10.In the second line of argument, the learned Counsel would contend that in the instant case, the occurrence has taken place on 20.10.2002; that at that time, when A-1 along with her two matured daughters, was in the house with the deceased, the deceased as usual, was quarreling with her as he suspected her fidelity, and called her "prostitute"; that he further added that she was not only indulging in these activities with A-2, but also she has made her daughter also prostitute; that it is quite natural for a mother to act so when her daughter was branded as prostitute, and thus she got provoked by the same and has acted so; that under the circumstances, the act of A-1 is neither intentional not premeditated, but due to sudden provocation, and hence it would not attract the penal provisions of murder, but would fall under one of exceptions to Sec.300 of IPC, and this has got to be considered by this Court. 11.Advancing arguments on behalf of the appellant/A-2 in C.A.No.599/2007, the learned Counsel would submit that in the instant case, the prosecution had no direct evidence to offer, and it relied on circumstantial evidence; that as far as the motive part was concerned, the prosecution relied on the evidence of P.Ws.7, 13, 14, 17, 28 and 29 that A-1 and A-2 had developed intimacy, and when they found the deceased as a hurdle and also pursuant to the incident of quarrel that took place on 20.10.2002, they committed the crime; that as far as these witnesses are concerned, even assuming if the crime was committed, they have not come forward to give any statement like that; that only after the extra-judicial confession was made by A-1 to P.W.8 and after it came to the knowledge of the police, they have come forward to say like that; that as far as motive is concerned, it is only a weak piece of evidence; that so also the evidence was week; that as far as the extra-judicial confession alleged to have been made by A-1, is concerned, it should have been rejected for two reasons; that firstly, it was a weak piece of evidence; that secondly, it was allegedly made by A-1 and that too after number of days; that even assuming that it had taken place, it would not in any way bind A-2 in law; that apart from that, it is alleged to have been made by A-1 to P.W.8; that P.W.8 was a total stranger; that according to him, he went to the house of A-1 only once and if to be so, he cannot be stated to be friendly or acquainted with her; that P.W.29 claimed to be a good friend of A-1; that if to be so, there was all possibility of A-1 making any confession to P.W.29, but not done so, and hence, she could not have made any confession to P.W.8 as put forth by the prosecution. 12.The further submission of the learned Counsel is that P.W.7 is actually the younger brother of the deceased; that according to him, he knew the intimacy between A-1 and A-2, and if to be so, he https://hcservices.ecourts.gov.in/hcservices/ would have brought the same to the notice of the police immediately and expressed his suspicion, but not done so; that these witnesses have already been examined before the Juvenile Court, and they have spoken about the illicit intimacy; but, when they gave evidence before the Court of Sessions, they have not whispered anything about the same; that P.W.17, whose evidence was relied on by the trial Court, was only a servant maid; that apart from that, it was not her evidence that she found both A-1 and A-2 either sharing the bed or she entertained suspicion; that even if they were found inside the house, it cannot be inferred that they have got intimacy with each other; that apart from that, P.W.15 has spoken to the fact that he gave M.O.10, Maruthi car, to A-2; and that further, the evidence of the witnesses examined would go to show that they found A-1 and A-2 and the juvenile accused near the place called Kallatty Check Post, where the dead body was disposed. 13.The learned Counsel would further add that the occurrence has taken place in the night hours of 20.10.2002; that further the dead body was taken from the place in a gunny bag the next morning, and if to be so, the dead body was kept in the house of A-1 for a period of one day; that it was highly improbable; that apart from that, no evidence was available to show that A-2 was actually in the house of A-1 at any point of time either on 20.10.2002 or on 21.10.2002; that even assuming that at the time, when the dead body was left at Kallatty Check Post, A-2 was available along with A-1, it could be taken that he was also there along with the other accused for screening the evidence; that there is no direct or indirect evidence pointing to the involvement of A-2 in the crime of murder; that the trial Court has not taken into account any one of these aspects, and hence he is entitled for acquittal in the hands of this Court. 14.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 15.The prosecution came forward with a case to state that pursuant to the illicit intimacy between A-1 and A-2 and also the quarrel that arose between A-1 and her husband on 20.10.2002 during night hours, it was A-2 who fisted him; that he fell swooned; that they immediately planned to murder him and accordingly, put him inside M.O.8, barrel, poured kerosene and set fire; that when the dead body did not burn fully, they put the firewood and burnt the body; that when it was partly charred, they put it in a gunny bag, took the same and transported in M.O.10 Maruthi car, from the place of occurrence to Kallatty Check Post; and that both A-1 and A-2 along with the juvenile accused left the dead body and came back. True it is, the prosecution had no direct evidence to offer. It is pertinent to point out that the entire occurrence has taken place inside the house of A-1, the wife of the deceased. It is clear that the entire story of the prosecution commenced with the illicit intimacy between A-1 and A-2. From the evidence, it would be quite clear that the children of A-1 and the deceased were actually put in P.W.19's School for karate training, where A-2 also had his training during the relevant time, and he developed intimacy with the first https://hcservices.ecourts.gov.in/hcservices/ daughter of A-1 and the deceased, pursuant to which he used to visit the house of A-1 where he developed intimacy with A-1 also. The illicit intimacy between A-1 and A-2 was spoken to by P.W.17, the servant maid, who brought to the notice of the deceased. Then, he warned his wife A-1. Further, this has also been spoken to by other witnesses namely P.W.s,7, 13, 14, 28 and 29 who have actually seen them in closer terms. As far as this part of the evidence was concerned, if the evidence of these witnesses are perused, this Court has no hesitation to accept their evidence that they fell in intimacy which was actually disturbing the deceased. 16.The occurrence has taken place on 20.10.2002, and the prosecution mainly relied upon the extra-judicial confession given by A-1 to P.W.8. The intervening circumstance would be the conduct of A-1. The deceased during the relevant time, was working in Government Higher Secondary School, Annikkorai. On 25.10.2002, A-1 phoned over to the Headmaster of the school telling that he was on medical leave for a period of 10 days, and this has also been entered in the attendance register. The attendance register was also placed before the trial Court. It remains to be stated that the same is also found in the confessional statement. Thereafter, the other witnesses who are all close to the deceased, have enquired about the whereabouts of the deceased to which she answered that he has gone over to Salem for treatment for jaundice. That apart, when the Correspondent of the Karate School enquired A-1 about the absence of the children for a number of days, she has also given a reply that the children have accompanied the father to Salem, and thus, she has given a false reply. 17.Above all, the dead body was put in a barrel, and they poured kerosene and set fire. It was not fully burnt. Then, they took the firewood, placed the dead body and burnt the same. In that regard, the firewood shop owner has also been examined as P.W.30. He has also deposed to the fact that the firewood was purchased from his shop on that night. Further, when the dead body was found partly charred, they put it in a gunny bag and took the same in the Maruthi car. The owner of the car, M.O.10, was examined as P.W.15. He has categorically stated that the car was taken by A-2 for a while. It is pertinent to point out that A-1, A-2 and the other two juvenile accused were seen by P.W.10, an auto driver, on 21.10.2002 on the morning hours. 18.Further, P.W.24, a taxi driver, has also seen A-1 to A-4 proceeding in the Maruthi car towards the place where the dead body was disposed. The evidence of P.W.24 and P.W.10 would clearly indicate the fact that A-1 and A-2 along with two other juvenile accused have proceeded from the place of occurrence in the Maruthi car, M.O.10, which belonged to P.W.15, and also disposed the dead body. At this juncture, it remains to be stated that all the above would stand as corroborative