K. Lakshmi vs Inspector of Police

M. Chockalingam, J.—This appeal challenges a judgment of the Principal Sessions Division, Pudukkottai, made on 17.4.2007 in S.C. No. 57 of 2006 whereby the appellant shown as A-2 along with A-1 stood charged, tried and found guilty under Sections 302 read with 34 and 302 read with 201 of IPC and awarded life imprisonment along with a fine of Rs. 10000/- and default sentence and three years Rigorous Imprisonment along with a fine of Rs. 5000/- with default sentence.

The short facts necessary for the disposal of this appeal can be stated thus:

(a) P.W.4 is the mother of the deceased Krishnamoorthy. P.W.6 is the father of A-2. The marriage of A-2 and the said Krishnamoorthy took place in the year 1995. They had two children out of the wedlock. They were living at Merpalaikkadu. The deceased Krishnamoorthy was employed in Hotel Impala at Pudukkottai, which belonged to P.W.7. On weekly holidays, he used to go to the village. A-1 was a Homoeopathy Doctor by profession. A-1 and A-2 had illicit intimacy. P.W.6 and others advised both of them not to behave so. But, both A-1 and A-2 did not heed to the same.

(b) On 14.6.2004 at about 8.00 p.m., the deceased Krishnamoorthy, after doing the day''s work, left for his native place, and he had to come back to work in the hotel on 16.6.2004; but, he did not come back. Even there was no whisper about him.

(c) On 15.6.2004, during night hours, P.W.9, who is the brother-in-law of the deceased, along with his wife Suseela came to a tea shop, which belonged to P.W.10. At that time, A-1 and Krishnamoorthy were taking tea in that shop. A-1 asked the deceased Krishnamoorthy to accompany him. But Krishnamoorthy refused to go with him. However, on his insistence, the deceased Krishnamoorthy went along with A-1 in a TVS Moped, which belonged to A-1, and they were not seen thereafter.

(d) On 16.6.2004, when P.W.1, a native of Poovatrakkudi, was going through the field, near the well situated in the filed he found a naked dead body, which was half burnt. Immediately, he proceeded to Aranthangi Police Station where the Sub Inspector of Police P.W.18 was on duty. He gave a report, which was marked as Ex.P.1. On the strength of Ex.P.1, PW.18 registered a case in Crime No. 299/2004 under Sections 302 r/w 201 IPC. The printed F.I.R. Ex.P.20 along with Ex.P.1 report was sent to the Court and to the higher officials.

(e) On receipt of the copy of the F.I.R., P.W.22, the Inspector of Police, took up investigation, proceeded to the spot and prepared an Observation Mahazer, Ex.P3 in the presence of witnesses and a rough sketch, Ex.P21. Then, he arranged for taking photos of the deceased Krishnamoorthy as well as the place, and the photos and negatives were marked as M.O.38 (Series) and M.O.39(Series) respectively. He recovered M.O.1 bloodstained earth, half burnt pant pieces, M.O.2 (Series), bloodstained earth, M.O.3 and sample earth, M.O.4, and other material objects recovered from the spot. Thereafter, P.W.22 conducted inquest on the dead body of the deceased in the presence of panchayatdars and prepared an Inquest Report Ex.P23.

(f) The dead body was subjected to post mortem by the Doctor P.W.15, attached to the Government Hospital, Aranthangi. He has issued a postmortem certificate Ex.P18 wherein he has opined that the deceased died out of burn injuries sustained.

(g) The identity of the body was not known. Hyoid bone and other parts were preserved for finding the identity. P.W.22 caused necessary publications through T.V., news papers and bit notices etc. On 30.11.2004, P.W.22 received an information from P.W.4 that the deceased Krishnamoorthy was not found, and he was missing for 5 months. Then, he proceeded to the place and verified from P.W.4. He has also received photographs from her. All the photographs and the negatives which were marked as M.O.38 (Series) and M.O.39(Series) respectively and the photos which were marked as M.O.11 (Series) received from P.W.4 were sent along with the skull and other parts of the body for the purpose of super imposition. The super imposition test was done as a result of which, P.W.19 has given her opinion under Ex.P17 that the dead body was that of the said Krishnamoorthy.

(h) Pending investigation, on 29.3.2005 A-1 was arrested, and he gave a confessional statement in the presence of the Village Administrative Officer, P.W.11 and his assistant. The same was recorded and the admissible part was marked as Ex.P7. Pursuant to the confession, M.O.21, TVS Moped, and other materials objects were recovered. A-2 was also arrested. Both the accused were sent for judicial remand. All the Materials Objects were subjected to chemical analysis, which resulted in Chemical Analysis Report. On completion of the investigation, the investigator filed the final report against the accused.

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 22 witnesses and relied on 25 Exhibits and 39 Material Objects. 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 they flatly denied as false. No defence witness was examined. The trial Court after hearing the arguments advanced by either side and considering the materials available on record, took the view that the prosecution has proved its case beyond reasonable doubt and hence found the accused guilty of the charge of murder and awarded punishment referred to above. Aggrieved over the same, the appellant/A-2 has brought forth this appeal before this Court.

Advancing the arguments on behalf of the appellant, the learned Counsel Mr. C.A. Ganapathi would submit that the trial Court has not considered the evidence in its proper perspective; that there is no evidence at all connecting the accused with the crime in question; that it is true that the case is rested on the circumstantial evidence; that if to be so, the onus lies on the prosecution to prove the appellant''s role in the commission of the offence; but, it has miserably failed to do so; that it is pertinent to note that P.W.9 is the only person who is alleged to have seen last the deceased with A-1; that there is no evidence indicating that the appellant/A-2 was also seen along with A-1 and the deceased; that A-2 was not at all present in the place of occurrence; that the alleged confessional statement was obtained from A-1 and not from A-2; that even in the said confessional statement, it is stated that A-1 alone took the deceased in his TVS 50 moped, poured kerosene and set him ablaze; that apart from that, there is inordinate delay in lodging the complaint; that in the instant case, the vital witnesses namely P.Ws.10, 12, 20 and 21 have turned hostile; that apart from that, the finger print expert''s opinion has been withheld since it does not connect the accused with the offence; that the important material object is TVS 50 moped; but, the ownership of the vehicle was not proved by the prosecution; that the occurrence is alleged to have taken place in the late night of 15.6.2004; but P.W.9 is alleged to have seen lastly the deceased along with A-1 by 9.00 A.M. on that date; that under the circumstances, the last seen theory cannot be applied in the case on hand; that had P.W.9, the brother-in-law of the deceased, seen the deceased along with A-1 on 15.6.2004, he would have brought the same to the notice of the police or informed to anybody, but not done so; that it is pertinent to point out that P.W.4, the mother of the deceased, had not given any complaint about the missing of her son, and under the circumstances, the evidence projected by the prosecution through P.W.9 as to the last seen theory, is highly improbable and unbelievable.

Added further the learned Counsel that the case was registered after 5 months, and A-1 and A-2 were arrested after 9 months even though they were very well available in their native places; that there is no evidence to show that A-1 and A-2 shared any common intention for the commission of murder; that as far as the report given by the expert on superimposition test, there is no conclusion that it was the skull of the deceased Krishnamoorthy; that the prosecution has miserably failed to point out the nexus or the complicity of A-2 in the instant case; that in the instant case, motive for the crime was illicit intimacy between A.1 and A.2, but there was no one to speak about that fact; that the Investigator has filed the final report in the case wherein he has stated that there was an earlier report, and he would state that only on suspicion, the accused were arrested; that all those material objects were found after a long period pursuant to the alleged confession; that the recovery of material objects and the alleged confession were all highly improbable and unbelievable; that the trial Court without considering the above aspects of the matter, has taken an erroneous view and found the appellant/A-2 guilty, and hence she is entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.

As could be seen above, on 15.6.2004, one half burnt dead body was found in the field of P.W.1, who gave a complaint under Ex.P1. Thereafter, a case came to be registered by the respondent police on the strength of Ex.P1. The identity of the dead body could not be found. Then following the publication made, it came to light that one Krishnamoorthy, the son of P.W.4, was found missing for about 9 months. The Investigator probed into the matter and verified the photographs available, and the skull was sent to the Forensic Sciences Laboratory along with the photos for superimposition test. A report was given to the effect that it was the skull of the deceased. Thus, the prosecution was successful enough in proving the same.

The motive attributed to the act of the accused was the illicit intimacy between A-2, the wife of the deceased, and A-1. As far as the motive part was concerned, it can be stated that there was no one to speak about the same. A perusal of the materials available would indicate that the prosecution though rested its case on the circumstantial evidence, has miserably failed either to place or to prove the necessary circumstances. The only evidence available for the prosecution was that of P.W.9, according to whom, he went to a tea shop along with his wife Suseela, and at that time, he found the deceased Krishnamoorthy in the company of A-1, and though A-1 called Krishnamoorthy to accompany him in the TVS moped, the deceased refused to go with him, and A-2, the appellant herein, compelled him to go and then the deceased went along with A-1, and thereafter, P.W.9 did not see Krishnamoorthy. The evidence of P.W.9 can be stated as highly improbable and unacceptable for more reasons. P.W.9 has married the sister of Krishnamoorthy and thus he was the brother-in-law. If to be so, when Krishnamoorthy was found missing, one would naturally expect P.W.9 to speak about the fact that it was A-1 who took him in his moped; but, he has not done so. It is pertinent to point out that P.W.9 knew A-1 very well, and A-1 was also staying in the same place. P.W.9 has neither questioned A-1 thereafter nor informed to P.W.4, the mother of the deceased, about the same. That apart, neither P.W.9 nor P.W.4 approached the police for a number of months as to the missing of the said Krishnamoorthy. The statement of P.W.9 was recorded by the Investigator on 4.1.2005; but, it has reached the Court only after a period of two months. No explanation was brought forth before the trial Court. The absence of Krishnamoorthy for a period of five months would improbablise that P.W.9 could not have seen them together.

A-1 on being convicted by the trial Court, challenged the same in C.A. No. 278 of 2007, and this Court has recorded an order of acquittal by setting aside the judgment of the trial Court, on 6.2.2008. It is pertinent to point out that the very reasons which were applied for the acquittal of A-1, have got to be equally applied for this appellant/A-2 also. As far as the illicit intimacy between A-1 and A-2 was concerned, there was no material available. Apart from that, the evidence of P.W.9 has been rejected on the reasons stated above. Further, the appellant/A-2 was arrested only on the confessional statement made by A-1. Needless to say that the confessional statement of the co-accused namely A-1 in this case, cannot be applied against the appellant/A-2. In short, it can be stated that the prosecution had no material to place or to show that the appellant had got any nexus to the crime in question. But the trial Court without proper appreciation of the materials available, has found the appellant guilty. Hence the appeal, in the considered opinion of the Court, has got to be allowed by setting aside the judgment of the trial Court.

Accordingly, this criminal appeal is allowed setting aside the judgment of conviction and sentence passed by the lower Court. The appellant/A-2 is acquitted of the charges levelled against her. She is directed to be released forthwith unless her presence is required in connection with any other case. The fine amounts if any paid, will be refunded to her. Consequently, connected MP is closed.