Allowed

Palaniammal, Aged 47 Years, v. the State Rep. by

Madras HC21 Mar 2019CRL A/269/2017

Case brief

AI extract

What is this about?

Appeal against murder conviction under Section 302 IPC; High Court allowed it due to lack of eyewitness, reliance on interested witnesses, doubtful recovery due to dementia of witness, and non-compliance with Section 65-B of Indian Evidence Act regarding electronic evidence, affirming benefit of doubt.

What did the court decide?

Conviction and sentence set aside; appellants acquitted of all charges and directed to be released forthwith.

Palaniammal, Aged 47 Years, Vs the State Rep. by — Murder and Culpable Homicide | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 07.03.2019 DELIVERED ON : 21.03.2019

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CORAM:

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THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN

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AND

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THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

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Criminal Appeal No.269 of 2017
1.Palaniammal
W/o.Sekar
2.Ramesh
S/o.Sekar ... Appellants/Accused 1 & 2
Vs
State represented by
Inspector of Police,
B-6, Peelamedu Police Station,
Coimbatore.
Crime No.825 of 2014 ... Respondent/Complainant

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Criminal Appeal filed u/s.374(2) Cr.P.C. against the judgment of learned I Additional District and Sessions Judge, Coimbatore, passed in S.C.No.191 of 2016 on 21.04.2017. For Appellant : Mr.P.Gunaraj For Respondent : Mr.R.Prathap Kumar, Additional Public Prosecutor

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JUDGMENT

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[Judgment of the Court was made by M.NIRMAL KUMAR, J] This appeal arises against the judgment of learned I Additional District and Sessions Judge, Coimbatore, passed in S.C.No.191 of 2016 on 21.04.2017.

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Case of prosecution is that deceased Ayyammal was the sister of A1 and deceased Lakshmi @ Esthar was the sister-in-law of deceased Ayyammal. Both were residing in the same house. De facto complainant is the son of deceased Lakshmi @ Esthar. De

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facto complainant visited the house of deceased some days prior to the incident to see his mother. At that time, accused came there, asked Rs.30,000/- as hand loan from the deceased Ayyammal and assured to repay the same within few days. As deceased Ayyammal informed that she was not having money, they demanded jewels and title deeds of property towards obtaining money by mortgaging them. Since the deceased Ayyammal has refused to accede to their demand, accused left the home after threatening her. On 14.10.2014, the de facto complainant was informed about the death of his mother and aunt. He rushed there and found the body of deceased. During investigation, it was found that as deceased was suffering from body pain, she requested the accused for medicine and using such situation, accused gave poison to deceased Ayyammal and Lakshmi which resulted in their death. Thereafter, accused took the jewels and cash of deceased Ayyammal and left the place. On the complaint of PW-1, a case in Crime No.825 of 2014 on the file of respondent for offences u/s.302 r/w 392 IPC was registered. Upon completion of investigation and filing of charge sheet informing commission of offences u/s.302 and 392 IPC, the case, on committal, was tried in S.C.No.191 of 2016 on the file of learned I Additional District and Sessions Judge, Coimbatore. Charges were framed against accused u/s.302 (2 counts) and 392 IPC.

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Before trial Court, prosecution examined 19 witnesses and marked 28 exhibits and 22 material objects. None were examined on the side of defence nor were any exhibits marked.

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3.1. PW-1, son of deceased Lakshmi, deposed that PW-2's daughter was given in marriage to A2, 4 days prior to the occurrence he visited the house of deceased Ayyammal to see his mother and at that time, accused came there, demanded a sum of Rs.30,000/- from deceased Ayyammal. Accused also demanded jewels and title deeds to properties towards mortgaging the same and when the same was refused by deceased Ayyammal, quarrel arose between them and upon being pacified by PW-1, accused left the place after threatening deceased Ayyammal. PW-1 deposed that he was informed by PW-1 over phone on 14.10.2014 about the death of his mother and deceased Ayyammal, that he immediately rushed to the scene and saw the deceased. PW-1 deposed to having enquired PW-2 about the cause of death, PW-2 informing him of she having visited the house of deceased a day before and found the house locked and again she came there the next day i.e. 14.10.2014, found a portion of saree near the bathroom, upon her request, persons nearby came there and opened the bathroom, where they found the body of mother of PW-1 and immediately, they broke open the house and found the body of her mother as also found the jewels worn by deceased Ayyammal missing. PW-1 deposed that he preferred Ex.P1, complaint, suspecting that accused would have caused the death of deceased.

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3.2. PW-2, daughter of deceased Ayyammal, deposed that she spoke to her mother in the night of 09.10.2014 over phone, of deceased Ayyammal informing her about demand made by accused, of having enquired A2 over phone as to why he asked money from her mother and warned him not to do so. PW-2 deposed that she spoke to her mother in the afternoon of 13.10.2014 over phone and when she called her mother in the evening she could not contact her since the phone was switched of. As the same position continued through out the day, she visited the house of her mother but the house was locked. PW-2 deposed that she again went there the next day morning and found the body of deceased. PW-2 also has spoken on similar lines of PW-1. PW-2 also deposed to having identified MO-1 - Gold Chain, MO-2 – 1 pair kammal, MO-3 – Gold droppings, MO-4 – Gold Ring, MO-5 – Lock, MO-6 – Cell Phone, MO7 – Small Bag and MO-8 – Photos.

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3.3. PW-3, neighbour of deceased, deposed that he knew deceased and accused. PW-3 deposed to having seen the deceased in the afternoon of 13.10.2014, of PW-2 enquiring her about the whereabouts of her mother in the night and of seeing the body of deceased on the next day.

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3.4. PW-4, neighbour of deceased, deposed that A2 was residing with deceased, of he having gone to his mother's house 10 to 20 days prior to the occurrence and accused came to the house of deceased on Monday at about 2 to 3 p.m. PW-4 also deposed about the death of deceased.

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3.5. PW-5, neighbour of deceased, deposed that she knew both accused and deceased and of having seen accused in the house of deceased 10 to 15 days prior to the occurrence. PW-5 also deposed to having gone to her child's school at about 04.00 p.m. and on her return, A1 requesting for a glass of water. PW-5 deposed about the death of deceased. PW-5 also deposed that A1 was found nervous on 13.10.2014 and as she suffers from breathing problem, she thought that it was the cause therefor.

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3.6. PW-6 deposed that he is running a chicken shop, of knowing both accused and deceased and of attesting Ex.P2, Observation Mahazar and Ex.P3, Seizure Mahazar for MO-5 [lock].

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3.7. PW-7 deposed that he is running a grocery shop and he knew both accused and deceased. PW-7 also deposed that on 13.10.2014 at about 03.00 p.m. A2 purchased ‘Sprite Cool Drinks’ from him and that he came to know about the death of deceased, the next day.

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3.8. PW-8 deposed that he is residing at ‘Ganga Casil’ apartment in which deceased Ayyammal was working. PW-8 also deposed that on behalf of the Association, he has given Rs.5,000/- towards Deepavali bonus to deceased Ayyammal on 13.10.2015 and that he came to know about her death 3 days thereafter.

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3.9. PW-9, co-employee of A2, deposed that A2 absenting himself from work 4 to 5 months prior to the occurrence. PW-9 deposed that A2 borrowed a sum of Rs.85,000/- from him and upon his repeated demand, A2 gave him a gold chain on 13.10.2014 and asked him to keep the same and that he would repay the money by pledging that jewel within two days. PW-9 also deposed that on 15.10.2014, A2 and Inspector came to their house, of having handed over the jewel upon the instructions of Inspector and of attesting Ex.P4, seizure mahazar for gold chain.

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3.10. PW-10, financier, deposed that on 13.10.2014, A2 pledged a pair of ear stud, a pair of droppings and a gold ring for Rs.12,500/- and on 15.10.2014, A2 and Inspector came to their shop with the bill and on the instructions of Inspector, he handed over the jewels. PW-10 also deposed to attesting Ex.P5, seizure mahazar for MOs.2, 3 and 4.

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3.11. PW-11 deposed that he is running a ‘Iyyappa Agro Services’ pesticide shop and on 13.10.2014 between 1.45 and 02.00 p.m., accused purchased pesticides from him and on the same day, between 4.30 and 5.00 p.m., A2 again came to their shop and purchased another one. PW-11 also deposed that he has handed over MO-14 [Hard Disk] to Inspector of Police.

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3.12. PW-12, Village Administrative Officer, deposed that upon information, he visited the Police Station on 15.10.2014, accompanied police personnel to Singanallur at about 05.45 p.m., police intercepted the motorbike of accused, who admitted their guilt and recorded their confessions. PW-12 deposed to recovery of material objects and of attesting the seizure mahazars. PW-12 suffers from ‘memory loss’.

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3.13. PW-13 deposed to attesting seizure mahazars.

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3.14. PW-14, Assistant Director, Forensic Sciences Department, deposed that on examination of a liquid received with regard to Crime No.825/2014, it was found that it contains a chemical, namely, ‘Monocrotophos’, which would be used in preparing ‘Organophosphorus’ pesticide. PW-14 also deposed that the viscera of the deceased contained ‘Organophosphorus’ pesticide.

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3.15. PW-15, Doctor, who conducted postmortem on the body of deceased Ayyammal, stated that the deceased would appear to have died of Organophosphorus Compound Poisoning. Ex.P16, Postmortem Report, reads thus:

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‘POST MORTEM CERTIFICATE P.M.No.: 2815/14 dated : 15.10.14 Cr.No.:825/14 of B-6 P.S. Regarding the body of a female aged about 65 years, named AYYAMMAL. Requisition received at 11.00 a.m. on 15.10.14 from The Inspector of Police, B-6 P.S. with his letter 825/14, Body in charge of Women Grade I Police Constable No: 1482 named M.Baby. Identification Marks:

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A black mole seen over left arm. 2. An old scar seen over right knee. Body was first seen by the undersigned at 11.05 am on 15.10.14. The condition of the body then was rigor mortis present only on lower limbs. Postmortem examination was commenced at 11.05 am on 15.10.14. Appearances found at Post Mortem : Moderately nourished body of a female aged about 65 years. Fingers and toenails were bluish in colour. No evidence of any ante mortem external and internal injuries noted over the body. Other Findings:

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Pleural and Peritoneal cavities – empty.

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– Hyoid bone – intact.

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Larynx and Trachea : Cut section congested.

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– Heart – all chambers contains about few cc of fluid blood.

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Stomach contains about 300 grams of partially digested food particles with unpleasant smell, mucosa congested.

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Small Intestine contains about 10ml of bile stained fluid, with unpleasant smell, mucosa congested.

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Liver, Spleen, Kidneys, Brain and Lungs – cut section congested.

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Urinary bladder – empty.

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Uterus : Atrophied, cut section empty.

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– Viscera preserved and sent for chemical analysis. Opinion : Reserved pending for chemical examiners report. The death would have occurred 24 to 36 hours prior to body kept in the cold storage room.’ Ex.P17, Final Opinion, reads thus:

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‘FINAL OPINION P.M.No: 2815/14 dated : 15.10.14 Cr.No.: 825/14 of B-6 Peelamedu P.S. Chemical Analysis report No : RT2917/14 CBE Tox.H2712/14 Cout/cbe/Tox H/2713/14 at 06.11.14 of the R.F.S.L., Coimbatore.

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Name of the deceased: Ayyammal Age: 65 yrs. Sex: Female Opinion : The deceased would appear to have died of Organophosphorus Compound Poisoning.’

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3.16. PW-16, Doctor, who conducted postmortem on the body of deceased Lakshmi @ Esther, stated that the deceased would appear to have died of Organophosphorus Compound Poisoning. Ex.P19, Postmortem Report, reads thus:

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‘POST MORTEM CERTIFICATE

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P.M.No.: 2814/14 dated : 15.10.14 Cr.No.:825/14 of B-6 P.S. Regarding the body of a female aged about 75 years, named LAKSHMI @ ESTHAR. Requisition received at 10.05 a.m. on 15.10.14 from The Inspector of Police, B-6 P.S. with his letter 825/14, Body in charge of Women Police Head Constable No: 267 named Amirthavalli. Identification and caste Marks: 1. A black mole seen over left leg. 2. A black mole seen over right leg. The body was first seen by the undersigned at 10.10 am on 15.10.14. Its condition then was rigor mortis present all over the body, Postmortem commenced at 10.10 am on 15.10.14.

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Appearances found at Post Mortem : Moderately nourished body of a female aged about 75 years. Fingers and toenails were pale.

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No evidence of any ante mortem external and internal injuries noted over the body. Other Findings:

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Pleural and Peritoneal cavities – empty.

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– Hyoid bone – intact.

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Larynx and Trachea : Cut section congested.

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Heart – all chambers contains about few cc of fluid blood. Coronaries patent.

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Stomach contains about 25 ml of dull white colour fluid with unpleasant smell, mucosa congested.

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Small Intestine contains about 10ml of bile stained fluid, with unpleasant smell, mucosa congested.

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Liver, Spleen, Kidneys, Brain and Lungs – cut section congested.

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Urinary bladder – empty.

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Uterus : Atrophied, cut section empty.

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Viscera preserved and sent for chemical analysis.

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Opinion : Reserved pending for chemical examiners report. The death would have occurred 12 to 24 hours prior to body kept in the cold storage room.’

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Ex.P20, Final Opinion, reads thus:

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‘FINAL OPINION

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P.M.No: 2814/14 dated : 15.10.14

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Cr.No.: 825/14 of B-6 P.S.

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Chemical Analysis report No : RT 2918/14 Continue 27.2.14 Tox.H2713/14 Dt : 06.11.14 of the R.F.S.L., Coimbatore.

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Name of the deceased: Lakshmi @ Esthar Age: 75 yrs. Sex: Female

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Opinion : The deceased would appear to have died of Organophosphorus Compound Poisoning.’

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3.17. PW-17, Assistant Director, Forensic Sciences Department, deposed that he converted the contents in the Hard Disk with regard to Crime No.825 of 2014 into a CD and handed over the same along with photographs to Court. Exs.P21 and P22 were the reports submitted by PW-17.

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3.18. PW-18, Special Sub-Inspector of Police, deposed that on the complaint of PW-1, a case in Crime No.825 of 2014 for offences u/s.302 r/w 392 IPC was registered and of forwarding the same to Court and higher officials.

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3.19. PW-19, Investigation Officer, spoke to visiting the scene of crime, preparation of exhibits, examining witnesses and recording their statements, conducting inquest in the presence of panchayatdars and witnesses, arrest of accused and recording their confession, forwarding the body of deceased towards conduct of postmortem, seizure of material objects, forwarding the accused to judicial custody, obtaining various reports and upon completion of investigation, filing of charge sheet informing commission of offence u/s.302 and 392 IPC.

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On questioning u/s.313 Cr.P.C., appellant/accused denied charges. On appreciation of materials before it, trial Court, convicted appellants/accused for offences u/s.302 (2 counts) and 392 IPC and sentenced each of them to life imprisonment and fine of Rs.5,000/- i/d 3 months S.I. for offence u/s.302 IPC (2 counts) and 10 years R.I. and fine of Rs.3,000/- i/d 2 months S.I. Trial Court directed that sentences to run concurrently.

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Heard learned counsel for appellants and learned Additional Public Prosecutor for the State. Perused the materials on record.

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Learned counsel for petitioner submitted that there is no witness to the occurrence and the entire case rests on circumstantial evidence and the last seen theory. No independent witness has been examined. As PWs.1 and 2 are closely related to the deceased, they are interested witness and hence, their evidence could not be relied upon. Prosecution has failed to prove recovery of articles through cogent and clear evidence. Since it is a case of circumstantial evidence,

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prosecution should establish its case beyond reasonable doubt, which it has failed to do. Learned counsel submitted that without conducting proper investigation, the investigation officer has filed the final report and the trial Court has failed to appreciate the materials and evidence in a proper perspective and wrongly convicted the appellants. Submitting as above, learned counsel prayed that the appellants may be given the benefit of doubt. In support of his submission, learned counsel relied on the following judgments:

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(i)Turuku Budha Karkaria v. The State [1994 Cri.L.J. 552] ;

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(ii)Vasa Chandrasekhar Rao v. Ponna Satyanaryana and another [2000 (6) SCC 286]; (iii)Sudama Pandey and others v. State of Bihar [2002 (1) SCC 679] ;

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(iv)Bodhraj @ Bodha and others v. State of Jammu and Kashmir [2002 (8) SCC 45] ;

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(v)State of UP v. Sathish [AIR 2005 SC 1000] ;

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(vi)State of M.P. v. Paltan Mallah and others [2005 (3) SCC 169] ;

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(vii)Ramreddy Rajesh Khanna Reddy and another v. State of A.P. [2006 (10) SCC 172] ;

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(viii)Sahadevan and another v. State of Tamil Nadu [2012 (6) SCC 403] ;

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(ix)Prakash v. State of Rajasthan [2013 Crl.L.J. 2040] ; and

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(x)Karuppasamy v. The State of Tamil Nadu [2017 (4) CTC 413].

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Learned Additional Public Prosecutor submitted that the evidence of PWs.1 and 2 would prove the fact that the accused had motive and they were in dire need of money. The evidence of both witnesses corroborates each other. PWs.3, 4 and 5 have spoken regards last seen theory. PW-3 states that on 13.10.2014 at about 01.00 p.m. she saw deceased alive. PW-11, pesticide shop owner, had identified the accused as persons purchased the pesticide, which was found in the viscera of deceased and which fact has also been corroborated by PWs.15 and 16, Doctors as well as PW-14, Forensic Expert. Further, CCTV recordings have been examined by PW-17 and Exs.P21 and P22, Reports, have been issued. Further, PWs.9 and 10 are witnesses to recovery of Material Objects, namely, gold jewels and articles. Thus, the prosecution has proved its case beyond all reasonable doubt and hence, the finding of conviction requires no interference. In support of his submission, learned Additional Public Prosecutor relied on the following judgments:

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(i)Sonu alias Amar v. State of Haryana [2017 (8) SCC 570] ; and

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(ii)Shafhi Mohammad v. State of Himachal Pradesh [Special Leave Petition (Criminal) No.2302 of 2017]

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This Court has considered the rival submissions.

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This appeal succeeds for the following reasons:

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(i)There is no eye witness to the occurrence and the entire case

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rests on circumstantial evidence, motive, last seen theory and the recovery. Unless the circumstances form a cohesive chain and unerringly point to the guilt of the accused, the appellants could not be convicted for the offence of murder.

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(ii)Prosecution has sought to prove the motive through the evidence of PWs.1 and 2, who are none other than the son and daughter of the deceased and who deposed that accused were in financial need and since the deceased Ayyammal refused to give her jewels, they caused the murder and taken away the jewels. Except the evidence of PWs.1 and 2, no independent witness has been examined.

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(iii)Though PWs.3, 4, 5 (neighbours) and PW-7 (grocery shop owner) have informed of last seeing the accused in the afternoon of 13.10.2014, none of the witnesses have seen the accused and deceased together immediately before the fateful day.

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(iv)Though PW-11 has been examined to establish that accused have purchased pesticides from his shop, no bill or its copy has been produced in proof thereof. PW-11 himself has stated that it was his wife who had sold the second bottle of pesticide but she has not been examined in this case. Neither there was any mahazar nor was there any seizure memo for seizure of hard disk containing CCTV recordings. Given such position, the genuineness of the hard disk becomes doubtful.

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(v)Prosecution sought to establish recovery of material objects through PW-12, Village Administrative Officer and PW-13. The evidence of PW-12, Village Administrative Office, does not inspire confidence inasmuch as he himself admitted that he is suffering from dementia. PW-12, in cross, admitted that he did not know the number of pages of confession statement and where the print out was taken. Further, he has also admitted that the MO-22 [polythene bag] was found in a open place and anyone could see it. PW-13, another witness to the recoveries, admitted that he was seated in the police vehicle through out and attested the documents on the request of police. Hence, the seizure and recovery becomes doubtful.

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(vi)PW-12 is also an witness to the recovery of Mos.2, 3 and 4 [gold ear stud, gold droppings and a gold ring]. Ex.P27 is the bill for pledging jewels which has been marked through Investigation Officer. The signatures found in the receipts were not of accused and PW-10, financier, as could be seen from other available documents. MO-1 was recovered from PW-9, co-employee of A2. He admits that upon the instructions of police, without knowing the contents, he had signed Ex.P4, seizure mahazar. Thus, the recovery of these articles are doubtful.

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(vii)PW-17, Forensic Expert, who had examined the hard disk of CCTV recordings admits that what he had examined was a back up file signifying that it was not a primary recording, which fact has also been admitted by the Investigation Officer.

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Further, recordings of selective dates have only been forwarded for examination and the recordings were not continuous and hence, it cannot be conclusively held that it had been recorded in normal and usual course. Section 65-B of the Indian Evidence Act has not been complied with. Hence, the genuineness of the CCTV recordings is a questionable one. Ex.P28 is the requisition for CCTV recordings, which has been marked through the Investigation Officer with objection. PW11, shop owner, has not identified the same and there was no reasoning afforded by the trial Court for marking Ex.P28 when there was an objection. In view of the above, the entire CCTV recordings and its analysis is clouded with mystery.

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(viii)There were some corrections in the complaint and there was a delay of nearly 14 hours in the complaint and First Information Report reaching the Court. No explanation has been afforded by the prosecution.

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The above informed bristling infirmities in the prosecution case makes it necessary that appellants be afforded the benefit of doubt.

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The Criminal Appeal shall stand allowed. The conviction and sentence of passed by learned I Additional District and Sessions Judge, Coimbatore, in S.C.No.191 of 2016 on 21.04.2017, are set aside and appellants are acquitted of all charges. Appellants are directed to be released forthwith unless their presence/custody is required in connection with any other case. Fine amount, if any, paid shall be refunded.

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Sd/Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar gm To 1.The Judicial Magistrate No.VI, Coimbatore. 2.-Do- Thro The Chief Judicial Magistrate, Coimbastore. 3.The I Additional District and Sessions Judge, Coimbatore.

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4.The Principal District and Sessions Judge, Coimbatore.

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5.The District and Sessions Judge, Coimbatore.

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6.The Superintendent of Central Prison, Coimbatore. 7.The Superintendent of Central Prison (Women), Coimbatore. 8.The Inspector of Police, B-6, Peelamedu Police Station, Coimbatore. 9.The District Collector, Coimbatore. 10.The Director General of Police, Chennai. 11.The Public Prosecutor, High Court, Madras. 12.The Superintendent of Police, Coimbatore. 13.The Section Officer, Criminal Section, High Court, Madras-104. +1cc to Mr.P.Gururaj, Advocate Sr.26719 +2cc to Mr.V.Vadivelu, Advocate Sr.26624

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Criminal Appeal No.269 of 2017 ssd[co] srg 26/04/2019

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Palaniammal, Aged 47 Years, v. the State Rep. by

Case brief

What is this about?

What did the court decide?

Palaniammal, Aged 47 Years, v. the State Rep. by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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