A criminal appeal against the acquittal of accused in a murder case involving conspiracy, wounding, and intention to cause death. The court upheld the acquittal.
The criminal appeal filed under Section 372 Cr.P.C. was dismissed; order of acquittal of respondents 2 to 4 was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.A(MD) No.114 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.09.2024
Pronounced on : 19.10.2024
Coram:
THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN AND THE HONOURABLE MS. JUSTICE R. POORNIMA
Crl.A.(MD)No.114 of 2021
A.Annal .. Appellant/Victim/wife of deceased
Vs.
1.State rep. by The Inspector of Police, Kalakadu Police Station, Tirunelveli District Crime No.114/2004 .. Respondent/Respondent/Complainant 2.Ebenezer ... Respondent / Respondent/Accused 1 3.Kannan ... Respondent / Respondent / Accused 2 4.Mahendren ... Respondent /Respondent /Accused 3
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Prayer : Criminal Appeal filed under Section 372 of the Criminal Procedure Code, to call for the records in S.C.No.206 of 2004 on the file of III Additional Sessions Judge, Tirunelveli allowing this appeal and to set aside the judgment dated 30.11.2020 and convict the respondents 2 to 4 for the offences punishable under Sections 120(B) read with 302 and 109 r/w. 302 I.P.C, 1860.
For Appellant : Mr.G.Krishnamurthy
For Respondents : Mr.S.Ravi, Additional Public Prosecutor for R1 : Mr.S.Palanivelayutham for R2
J U D G M E N T
(Judgment of this Court delivered by R.POORNIMA,J.)
This Criminal Appeal is filed against the acquittal of the accused / respondents 2 to 4 in the judgment dated 30.11.2020 passed by the III Additional Sessions Judge, Tirunelveli, in S.C.No.206 of 2004 by acquitting the respondents 2 to 4 from the charges for the offences punishable under Sections 302 read with Section 120(B) and 109 I.P.C, 1860. The appellant herein is the wife of deceased Iyyappan who has
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been examined as P.W.4 in the trial Court in S.C.No.206 of 2004, she
had preferred this Criminal Appeal, against the order of acquittal, under Section 372 Cr.P.C, 1973.
2.1. One Iyyapan, husband of the appellant, was done to death on 23.03.2004. A case was initially registered under Section 174 Cr.P.C, 1973 and later, altered into Sections 302 read 120(B) and 109 I.P.C, 1860. As per the prosecution case, the deceased Iyyapan, was an important witness in a criminal case which was pending before the Chief Judicial Magistrate Court, Tirunelveli against the accused Nos.2 and 3. Due to the above, Accused Nos.2 and 3 anticipated an unfavourable result in their favour and therefore, they had previous enmity against Thiru.Iyyapan.
2.2. On 15.03.2004, in a tea shop, Accused Nos.1 to 3, hatched
criminal conspiracy to commit the murder of Thiru.Iyyapan. In that conspiracy, Accused Nos. 2 and 3 induced accused No.1 to do away
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Iyyapan (deceased) and on such instigation and abetment, on 22.03.2004, when the deceased-Iyyapan was attending a marriage, the first accused in order to complete the plan made Iyyapan to consume alcohol. When he became unconscious, the first accused with intention to commit murder, took him in a two wheeler to north of Mavadi south of Salaipudhur and attacked him with Iron rod and inflicted injuries and thereby, caused his death. The Inspector of Police, Kalakadu Police Station filed charge sheet against A1 to A3. This was taken cognizance by the Judicial Magistrate in P.R.C.No.19 of 2009 and copies were furnished to the accused as contemplated under Section 207 Cr.P.C. As the offence against the accused were exclusively triable by the Court of Session, the judicial Magistrate committed the case to the Principal Sessions Court, Tirunelveli. The case was taken by the Principal Sessions Court in S.C.No.206 of 2004 and the Principal Sessions Judge made it over to the III Additional Sessions Judge on 15.02.2005. After receipt of the case, the learned Additional Sessions Judge framed charges against the first accused under Sections 120(B) read with 302, 109 read with 302 I.P.C and against the Accused Nos.2 and 3 under Section 120(B) read with 302 and 109 read with 302 I.P.C. Since the accused pleaded not guilty and
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claimed to be tried, the III Additional Sessions Judge, conducted trial.
2.3. To prove the case of the prosecution, 20 witnesses were
examined and Ex.P1 to Ex.P29 were marked and Material Objects M.O.1 to M.O.10 were produced. After full trial, since the Court found that the prosecution failed to prove the case beyond all reasonable doubt, acquitted the accused from the above charges.
(i) The judgment of the lower Court is against law, weight of evidences and probabilities of the case and hence, liable to be set aside.
(ii) The lower Court ought to have believed the evidence of P.W.1 to P.W.21 and convicted the respondents 2 to 4.
(iii) The lower Court ought to have accepted the evidence of exhibit P.1 to P29 and convicted the respondents 2 to 4.
(iv) The lower Court ought to have accepted the evidence of M.O. 1 to M.O.10 and convicted the respondents 2 to 4.
(v) The lower Court deliberately deviated from the regulated
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procedure to write a judgment. Further, the lower Court did not narrate
the entire deposition of the prosecution witnesses while writing the judgment with an intent and determination to acquit the respondents 2 to 4.
(vi) The lower Court did not compel the prosecution to examine Senthil Kumar, who is the main witness rather allowed the prosecution to dispense with his appearance mechanically.
(vii) The lower Court with pre-determined intention to acquit the respondents 2 to 4 discussed only the laches.
(viii) The lower Court ought to have convicted the respondents 2 to 4 on the basis of evidence of P.W.18 and the evidence of P.W.14. Further, the evidence of P.W.14 ought to be considered relevant in view of res-gestae.
(ix) The lower Court went against Law and Judicial Precedents to disbelieve the evidence of P.W.11 on the ground that she is the relative of P.W.14.
(x) The lower Court ought to have taken judicial notice that the deceased Iyyapan was important witness in a criminal case pending against the respondents 3 and 4 by invoking Section 165 of Indian
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Evidence Act, 1972 (amended).
(xi) The lower Court ought to have convicted the respondents 2 to 4 on the ground that the evidence of P.W.9 to P.W.11 as sufficient for last seen theory.
(xiii) The lower Court after allowing the prosecution to dispense with listed witnesses mechanically and later, acquitted the respondents 2 to 4 on that evidence.
(xiv) The lower Court wrote the judgment in a causal way and illegally held that the evidence of P.W.4, P.W.19, P.W.17, P.W.5, P.W.7, P.W.8, P.W.9, P.W.20, P.W.21 and evidence of P.W.11, P.W.14 and P.W.15 is not sufficient to prove the case without discussing their evidence within the test of Indian Evidence Act, 1872 (as amdned).
(xv) The lower Court failed to exercise the provisions of Sections 357A(3) Criminal Procedure Code, 1973 (as amended) and awarded compensation to appellant / victim.
(xvi) The lower Court ought to have described the entire deposition of prosecution witness before discussing issues as to whether the prosecution proved their case or not. This deliberate omission warrants the de-novo trial since the entire trial conducted by the lower
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Court seems to be not participatory to administer justice. The lower Court tolerated all lapses on the part of prosecution as silent spectator and later acquitted the respondents 2 to 4 conveniently.
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Material Objects. Since the important witnesses turned hostile and some of the key witnesses, who had accompanied the deceased and are alleged to have witnessed the occurrence were not examined as they were not found and for that the prosecution could not be found fault. Important witnesses turned hostile and did not support the prosecution case and based on the available evidence and materials, the lower Court acquitted the accused and prayed to dismiss the appeal.
though prosecution cited 29 witnesses, during trial, 21 witnesses were examined and witness Nos. 7 to 10, 12 and 23 were dispensed with by the prosecution.
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Shanmuga Sundaram, brother of the deceased, L.W.2 Annal, wife of deceased were cited as witnesses, in order to prove the motive for the crime.
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conspiracy to kill his brother and Accused No.2 handed over a bundle of cash to A1 and A1 assured that he will do away his brother and get the remaining money. During trial, he had not spoken anything about the motive and did not state that he was informed by Selvaraj and Baskar about the conspiracy hatched between the accused.
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the same to the police. However, P.W.11 during cross examination stated that he had informed the police about the information given by Selvaraj and Baskar. But, it was not recorded in his Section 161 Cr.P.C. Further, the evidence of P.W.11 and P.W.14 are totally contra to their statement recorded under Section 161 Cr.P.C. In the 161 Cr.P.C. statement, P.W.11, stated that on 22.03.2004, he was informed by one Raja that himself, his brother Iyappan and A1 were attending a marriage at Kattalai and returned in a two wheeler at 11.45 hours. He then found Iyaappan’s dead body on South Road, on the southern side. After hearing the same, he along with his relatives had gone to that place and thereafter, he had informed the same to Annal P.W.14 and lodged the complaint that his brother was killed by an unknown person. He stated in his statement about the conspiracy between the accused Nos.1 to 3. Likewise, in the 161 Cr.P.C statement of P.W.14 there was no whisper about the conspiracy. But during trial, both P.W.11 and P.W.14 made improvements in their evidence by stating that the conspiracy between the accused was informed by Selvaraj and Baskar. The said Selvaraj had been examined as P.W.18. He stated that on 20.03.2004, evening 05.00 p.m., when he was standing in his residence, he witnessed the conspiracy.
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A3 informed A2 that A1 is the Fit Person to do away Iyaappan. A2 handed over cash to A1. A1 assured that he would complete the mission within 5 days. Since his conscious pricked him, he informed the same to Annal on 05.06.2005. During cross examination, he admitted that he is the own brother of Annal. He also admitted that he had not informed about the conspiracy to the police soon after hearing the same, for which, he replied that due to fear, he had not informed the same to police. Further, he had not deposed in his evidence that he had informed about the conspiracy to P.W.11 Shanmugasundaram.
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took place. In this regard, investigating officer did not record further statement of P.W.11 and P.W.14. Therefore, the evidence of P.W.11, P.W.14 and P.W.18 about the conspiracy among A1 to A3 is not reliable. Likewise, L.W.5, L.W.6, L.W.7 were also cited as witness to prove the conspiracy. L.W.5 - one Suresh and L.W.6 - one Thangaraj have been examined as P.W.1 and P.W.2. Both turned hostile and did not support the prosecution case. One Yovan – L.W.11 had been examined as P.W. 12, to prove the motive. During chief examination, he had stated that himself and accused Iyappan were cited as witnesses in Guruswamy case. Accused Nos.2 and 3 threatened him on 03.03.2004, at night 01.45 a.m., not to depose evidence against them in that case or they will do away with them and on 22.03.2004, murdered Iyappan. Therefore, he called A2 and A3 viz., Mahalingam and Kannan through phone and questioned them why they murdered Iyappan, for which, both asked whether they wanted to do the same to him, and immediately, he kept the phone. He had lodged a complaint before the Thirukurunkudi Police Station for self protection. However, no such complaint or phone call details had been produced by prosecution to prove that a complaint was lodged by P.W.12. His statement was contrary to his statement under Section 161
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Cr.P.C. In that statement, he had not stated about the complaint lodged against the accused before the Police Station and that he was not an eyewitness to the occurrence.
weapon from the accused did not support the prosecution case and turned hostile. Confession and recovery has not been proved by prosecution. L.W.4 - one Tr.Gopalakrishann was cited as eyewitness, who had accompanied the accused, but, he was not examined as he was not found in his address which is evident from V.A.O. Report, in the case records.
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was under surveillance, both the vehicles came near him and he stopped both the vehicles, but, the vehicle bearing Regisration No.TN-74B-5753, where the accused and deceased were travelling did not stop. He stopped the vehicle wherein Gopalakrishnan and others were travelling bearing Registration No.TN-74-V-8988. He asked Gopalakrishanan to bring the first accused, deceased and other witness. Thereafter, he received intimation that Iyyapan's body was found with blood injuries. Since the jurisdiction of the said place comes under the Kalakadu Police, they came to the place of occurrence. He also went and saw the dead body of Iyappan in a Maxi Cab, kept behind the driver seat and also found blood strains near 60 feet away. He stated that the said Iyyapan deposed against the accused Nos. 2 and 3 in Crime No.49 of 1999. But, no such case details were marked on the side of the prosecution.
were not examined by the prosecution during trial. Harikrishnan and Raja, who were accompanying the accused, were not cited as witness.
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that the 1st accused made the deceased to consume alcohol, but, none of the witnesses were examined by the prosecution. Normally, the trial Court would allow the prosecution to dispense the witness, but, the Court has the power to examine the witness, if their evidence is vital, if the prosecution fails to do and the Court can consider if necessary in the interest of justice to call the witnesses without the consent of prosecution or defence. The trial Court had not taken any steps to call the witness.
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The Supreme Court in the case of V.K. Sasikala Vs. State reported in (2012) 9 SCC 771 has held as under :-
''12. The parameters governing the process of investigation of a criminal charge, the duties of the investigating agency and the role of the courts after the process of investigation is over and a report thereof is submitted to the court is exhaustively laid down in the different Chapters of the Code of Criminal Procedure, 1973 (CrPC). Though the power of the investigating agency is large and expansive and the courts have a minimum role in this regard there are inbuilt provisions in the Code to ensure that investigation of a criminal offence is conducted keeping in mind the rights of an accused to a fair process of investigation. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a day-to-day basis and the power of the court under Section 172(2) and the plenary power conferred in the High Courts by Article 226 of the Constitution are adequate safeguards to ensure the conduct of a fair investigation.''
Crl.A(MD) No.114 of 2021
investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.
89. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya v. State of Karnataka (2012) 7 SCC 407 that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction.
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non examination of witness and improper investigation, before the trial Court. On careful perusal of records, the Court finds that the lapse on the part of investigating agency alone is not ground to acquit the accused by the lower Court, but the lower Court must considered whether no material was available against the accused. The lower Court then acquitted the accused.
Pradesh , the Hon-ble Supreme Court had laid down the principles to overrule or otherwise disturb a trial Court judgment of acquittal. In para
17, it had been held as follows:
“70.In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so.
A number of instances arise in which the appellate court would have ?very substantial and compelling reasons? to
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discard the trial court-s decision. “Very substantial and compelling reasons” exist when:
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.”
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link in the chain of circumstances that can help to establish the guilt of the accused. But, even the motive was not established by the prosecution. Absence of motive can weigh in favour of the accused and in the absence of motive, prosecution cannot prove the case. The prosecution failed to prove conspiracy between the accused. There are contradictions in the statements recorded under Section 161 Cr.P.C and the deposition by the witness during trial. The last seen theory was spoken to, but, witness, who accompanied the accused and deceased were not examined. The arrest, confession and recovery were not established. Except the official witness, no materials are available to connect the accused with the crime.
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the lower Court to set aside the same unless it is established that the
judgment is arbitrary, irrational or improper. Hence, there is no ground to set aside the judgment of the trial Court. There are no grounds to allow the appeal. The Criminal Appeal is hereby dismissed.
(C.V.K.J) & (R.P.J)
19.10.2024
Index :Yes Internet:Yes NCC : Yes LS
To
Tirunelveli
Kalakadu Police Station,
Tirunelveli District
Madurai Bench of Madras High Court, Madurai.
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C.V. KARTHIKEYAN,J. AND R. POORNIMA,J.
LS
Pre-delivery judgment made in Crl.A.(MD)No.114 of 2021
19.10.2024
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3 issues framed by the court
Whether the High Court should intervene in the lower court's acquittal of accused charged with murder.
Whether the absence of motive and prosecution lapse in examining witnesses warrant setting aside the acquittal.
Whether the alleged non-compulsion of prosecution witnesses constitutes valid ground for acquittal.
Colour shows how this judgement treated each authority
V.K. Sasikala Vs. StateReferred¶126
(2012) 9 SCC 771 · Who else cites this
Vinay Tyagi v. Irshad AliReferred¶131
(2013) 5 SCC 762 · Who else cites this
Samaj Parivartan Samudaya v. State of KarnatakaReferred¶132
(2012) 7 SCC 407 · Who else cites this
Ghurey Lal vs the State of Uttar PradeshApplied¶138
(2008) 10 SCC 450 · Who else cites this
6 provisions across 3 enactments
A. Annal
State
Ebenezer
Kannan
Mahendren
C.V. Karthikeyan
R. Poornima
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
C.V. Karthikeyan and R. Poornima
Parties & counsel
