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Judgment
M. Chockalingam, J.—Challenging the judgment of the Additional District Sessions Judge (Fast Track Court), Dindigul in S.C. No. 168 of
2005 dated 25.03.2008, whereby the appellants/accused 1 to 3 stood charged, tried, found guilty and awarded punishment as under, the present
Criminal Appeal has been filed.
Accused Charges under Finding Punishment
Section
A1 to A3 120(b) IPC Found guilty A1 to A3 were sentenced to pay a fine of
Rs. 1,000/- each in default to undergo 3
months R.I. each.
A1 to A3 364 IPC Found guilty A1 to A3 were sentenced to undergo 2
years R.I. each and to pay a fine of Rs.
1000/- each in default to undergo 6
months R.I. each.
A1 and A2 302 IPC Found guilty A1 and A2 were sentenced to undergo
life imprisonment each and to pay a fine of
Rs. 2000/- each in default to undergo 6
months R.I. each.
A1 and A2 201 IPC Found guilty A1 and A2 were sentenced to undergo 2
years R.I. each and to pay a fine of Rs.
1000/- each in default to undergo 3
months R.I. each.
A1 to A3 404 IPC Found guilty A1 to A3 were sentenced to undergo 2
years R.I. each and to pay a fine of Rs.
1000/- each in default to undergo 6
months R.I. each.
A3 302 r/w 109 IPC Found guilty A3 was sentenced to undergo life
imprisonment and to pay a fine of Rs.
2000/- in default to undergo 6 months R.I.
The short facts necessary for the disposal of this appeal can be stated as follows:
(i) P.W.1 is the brother of the deceased Pushpavalli. The son of the third accused by name Kanagapandi and the deceased Pushpavalli fell in love
with each other, which culminated in their marriage. They had a female born, and during the relevant time, she was pregnant by five months. The
third accused, who is the mother of Kanagapandi tried her best to separate them, but she failed in her attempts. Then she hatched up a conspiracy
with A-1 and A-2, to do away with the deceased Pushpavalli.
(ii) On 30.03.2004 at about 1.00 p.m., she went to the house of the deceased, and under the guise of taking her to the hospital, she took her.
P.W.3, between 12.00 to 1.00 p.m., on that day, found the third accused taking the deceased. P.W.4, at about 3.45 p.m., saw A-2 and A-3
along with the deceased. P.W.5 witnessed the deceased in the company of A-3 and Anr. in a bus. P.W.6 has seen the deceased as pillion rider in
a two-wheeler, which was driven by A-2 on that day. Thereafter, she did not come back. P.W.1 and others made a search. They gave a
complaint on 03.04.2004 and the same was registered by the respondent-Police Station in Crime No. 92 of 2004, against A-2, A-3 and others.
The said complaint was given by Kanagapandi, the husband of the deceased, alleging that his wife was missing. Equally, another complaint was
given and registered.
(iii) While the matter stood thus, P.W.1 filed H.C.P. No. 507 of 2004 and also, the mother of the deceased filed H.C.P. No. 559 of 2004, and
they were pending before this Court. On enquiry, a Division Bench of this Court made a common order directing the respondent-Police to register
a case pursuant to which, a case came to be registered in Crime No. 140 of 2004 under Sections 147, 323, 294(b) and 364 IPC on 28.05.2004.
The printed F.I.R.-Ex.P19 was despatched to the Court and P.W.22 took up investigation.
(iv) While the matter stood thus, A-1 was arrested on 25.01.2005. He came forward to give a confessional statement voluntarily and the same
was recorded by P.W.22 in the presence of P.W.10 and other witnesses. The admissible portion of the confessional statement of the first accused
is marked as Ex.P2. On the basis of the confessional statement, A-1 took the police party to the place where the dead body was buried and
P.W.22 addressed a communication to P.W.15-Tahsildar in whose presence the dead body was exhumed and material objects were also
recovered. Ex.P20 is the Exhumation Report. P.W.15 conducted inquest on the dead body in the presence of witnesses and Panchayatars.
Subsequently, the case was converted to Sections 302, 120(b) and 201 of IPC. P.W.22 prepared Ex.P3-Observation Mahazar and Ex.P24-
Rough Sketch.
(v) The Doctor, P.W.20, on receipt of the requisition conducted autopsy on the dead body and has issued Ex.P21-Post Mortem Certificate that
the deceased would appear to have died of compression of neck and she would have died 8 to 12 months prior to exhumation and post mortem.
(vi) Pending the investigation, A-2 and A-3 were arrested and confessional statements were also recorded. The admissible portion of the
confessional statements of the second and third accused are marked as Ex.P8 and Ex.P9, respectively. From the second accused, M.O.5-a pair
of ear studs, were recovered and from the third accused, M.O.4-Thali was recovered under a cover of Mahazar. The Investigating Officer
recorded the statements of the witnesses.
(vi) On exhumation of the dead body, only the skull part was available along with bones which were sent for Superimposition Test along with the
photographs. The Superimposition Test was conducted by P.W.16 and the Forensic Sciences Department gave a report under Ex.P18 wherein it
was opined that, it was the skull of Pushpavalli and the same was received and placed before the Court. On completion of the investigation, the
Investigating Officer filed Final Report. The case was committed to the Court of Sessions and necessary charges were framed against the accused.
In order to substantiate the charges levelled against the accused, the prosecution examined 22 witnesses and relied on 28 exhibits and 9 M.Os.
On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Cr.P.C. as to the incriminating circumstances
found in the evidence of the prosecution witnesses, which were denied by the accused. No defence witness was examined. The Trial Court after
hearing the arguments advanced on either side and considering the materials available on record, took the view that the prosecution has proved the
case beyond reasonable doubt and found the accused guilty of the charge of murder and awarded punishment. Challenging the conviction and
sentence as referred to above, this appeal has been filed by the accused/appellants.
Advancing arguments on behalf of the accused/appellants, Mr. D. Selvaraj, learned Counsel for the appellants, made the following submissions.
(i) The specific case of the prosecution was that one Pushpavalli, wife of one Kanagapandi and the daughter-in-law of A-3 was done to death
following a conspiracy hatched up by A-3 along with A-1 and A-2. The witnesses were examined to speak about the last seen theory. P.Ws.3, 4,
5 and 6 were examined to the effect that A-3 came to the house of Pushpavalli and she was taken from the house at about 1.00 to 2.00 p.m. on
30.03.2004 and that she was actually found in the company of A-3 and another in a bus and that, P.W.6 has also seen A-2 taking her in a bike
that evening. Insofar as the last seen theory put forth by the prosecution, it could not be true since P.W.21 and P.W.22 have categorically stated
that those witnesses have not spoken to that effect at the time of their examination u/s 161 of Cr.P.C. and therefore, the prosecution has miserably
failed to show that the dead body which was taken out by exhumation was that of Pushpavalli.
(ii) Certain photographs were given to the Forensic Department for the purpose of tests, but there is no evidence to indicate from whom the
photographs were received or the photographs which were received were that of Pushpavalli. Thus, the report what was received from the
Forensic Sciences Department was in respect of photographs and that was actually the skull which was placed, but there is no material to indicate
that the photograph which was placed before the Forensic Sciences Department was that of Pushpavalli, and there is no evidence available as to
how it was recovered and from whom it was recovered.
Learned Counsel for the appellants brought to the notice of this Court that 2 F.I.Rs. were registered, one in Crime No. 92 of 2004 on
03.04.2004, while the other in Crime No. 140 of 2004 on 28.05.2004. Insofar as the first crime is concerned, i.e. Crime No. 92 of 2004, four
accused are shown in which A-2 and A-3 are noticed, but the name of A-1 is not found. Equally in Crime No. 140 of 2004, number of accused
are shown and the Investigator has admitted that in both the crime numbers, number of witnesses were examined and the statements were
recorded, but they were not at all produced before the Court. In the H.C.Ps. filed before this Court, affidavits were filed by the Investigating
Officer to the effect that Pushpavalli was very well alive. It is pertinent to point out that both these H.C.Ps. were filed later at that point of time and
therefore, the investigator who took up investigation in these crime numbers, one of which was subsequently altered into Section 302 IPC, has
placed the affidavit before the Court that she was very well alive. Apart from that, the said Investigator has admitted before the Court that all the
witnesses who were examined by him have given a statement to the effect that Pushpavalli was alive and thus he has gone to the extent of giving
evidence before the Court that Pushpavalli was very well alive and under such circumstance, coupled with the fact that there is no evidence
available as to the identity of the person who died and the evidence of the Investigating Officer that Pushpavalli was very well alive from the
statements of the witnesses, the prosecution has not even proved to the effect that Pushpavalli died or the evidence which were produced before
the Court pertains to Pushpavalli. In that score also, the prosecution has miserably failed to prove the same.
Learned Counsel for the accused/appellants further added that insofar as the alleged recoveries are concerned, these are all cooked up in order
to suit the case of the prosecution and hence, the prosecution has miserably failed to prove the case and the Trial Judge has taken an erroneous
view and there is no iota of evidence in respect of conspiracy and hence the Trial Judge should have acquitted the accused, but had taken an
erroneous view in order to find them guilty, and therefore, the judgment of the Trial Court has got to be set aside.
This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made
and also scrutinised the materials available.
As could be seen from the available materials, the prosecution commenced its story that aggrieved over the marriage of her son Kanagapandi
with the deceased Pushpavalli, A-3 hatched up a conspiracy with A-1 and A-2. At the outset, it must be made clear that the prosecution has not
even placed any evidence or material to indicate that there was any conspiracy among them at any point of time and hence, the prosecution failed
in its conspiracy theory.
Insofar as the role of the accused/appellants in causing the death of Pushpavalli and also charges pertaining to the causing of the death of
Pushpavalli and the screening of evidence, the Court has noticed the following infirmities, which in the considered opinion of this Court, would
suffice to reject the case of the prosecution.
The specific case of the prosecution was that Pushpavalli, the wife of Kanagapandi was done to death and hence the factum of death of
Pushpavalli must be proved in the instant case. The specific case of the prosecution was that A-3 who came to the house of Pushpavalli took her
under the guise of taking her to the hospital on 30.03.2004, but unfortunately all the witnesses who were examined as to the last seen theory of
Pushpavalli with the accused namely P.Ws.3, 4, 5 and 6, have categorically deposed that they have not specified the date, which shows that their
evidence became shaky. The Investigator has categorically admitted that these witnesses have not spoken that Pushpavalli was taken by them or
found in their company and thus, the last seen theory was highly doubtful.
Insofar as the identity of Pushpavalli is concerned, the prosecution has not placed any evidence worth mentioning. P.W.15-Tahsildar has
exhumed the body and certain skeletons were found and it was also subjected to post mortem and P.W.20-Dr.Meiyazhagan conducted the post
mortem and to that effect, Ex.P21-Post Mortem Certificate was also issued, which would show that due to the injuries the death has been caused.
What was available was only a skeleton, and in more particular, a skull and they were placed before the Forensic Sciences Department for
analysis. Certain photographs were also recovered and placed before the analyst. It is true that P.W.16 has given a report to the effect that
Superimposition Test which was done by him would indicate that what was recovered was actually that of the female in the photograph, but the
question at that juncture would be whether the photograph was that of Pushpavallli. Now it has to be pointed out that the prosecution has not
brought forth any evidence from whom the photograph was actually received or how they got custody of the same. In short, there is no evidence at
all to show that the photograph that was available with the Police and placed before the Forensic Sciences Department was that of Pushpavalli. In
such circumstance, though the superimposition test was in favour of the prosecution, in the absence of anybody to identify the photograph that it
was Pushpavalli, the evidence put forth by the prosecution as to the identity of the deceased, cannot be accepted.
Added circumstance was that there were two H.C.Ps. in which a common order came to be passed in H.C.P. Nos. 507 and 559 of 2004,
one at the instance of the brother and other at the instance of the mother of the deceased Pushpavalli, and in both these H.C.Ps., the Investigating
Officer and the Police Official filed an affidavit to the effect that Pushpavalli was alive and a common order came to be passed by this Court on
28.05.2004, pursuant to which a case came to be registered only for kidnapping and not for murder. Further, the Investigating Officer who was
examined before the Trial Court, has categorically stated that the witnesses who were interrogated have given statements to the effect that
Pushpavalli was alive. The affidavit filed by the Investigating Officer in the H.C.Ps. coupled with the fact that all the witnesses who have been
interrogated, have stated that Pushpavalli was alive and also in the absence of any evidence as to the identity of the photograph which was placed
before the Forensic Sciences Department, would clearly indicate that prosecution has miserably failed to bring home any one of the factual aspects
required to take a decision in the case. Added further, it is pertinent to point out that 2 F.I.Rs. were filed only by the same Police, one at the
instance of the husband of the deceased and another at the instance of the order of this Court, and in both these cases, there was no proper
investigation. On the contrary, the case was converted to Section 302 IPC only on the arrest of A-1 having suspicion over him and the Investigator
would claim that it was A-1 who took them to the place of burial and that skeleton was taken. The recovery which has been relied upon by the
prosecution does not show the nexus of the accused with the crime in question, since from the skeleton that was recovered, the prosecution was
unable to show that it was that of Pushpavalli.
Under the circumstances, for the above stated reasons, the prosecution has not brought home the guilt of the accused and the prosecution has
miserably failed to prove the conspiracy theory or there was a murder committed by the accused. Hence the learned Trial Judge has taken an
erroneous view and it has got to be set aside. Therefore the Criminal Appeal is allowed and the judgment of conviction and sentence passed by the
Additional District Sessions Judge (Fast Track Court), Dindigul in S.C. No. 168 of 2005, dated 25.03.2008, is set aside, and the
appellants/accused 1 to 3, are acquitted of all the charges levelled against them. The appellants/accused 1 to 3 are directed to be released
forthwith, unless their presence is required in connection with any other case. The fine amount, if any paid by the accused, shall be refunded.