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2007 DIGILAW 2386 (MAD)

V. Krishnamoorthy v. Bharathi Raja & Others

2007-07-30

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- This revision has been preferred by P.W.1 against the judgment in S.C.NO.355 of 2002 on the file of the I Additional Sessions Judge, Krishnagiri. A1 &A2 have been charged under Sections 449, 302, 109 r/w 302 IPC, 380, 203 & 201 IPC. 2. The learned Judicial Magistrate after taking the case on file as PRC.No.54 of 2002, had issued summons to the accused and on their appearance copies under Section 207 of Cr.P.C., were furnished to the accused. Since the case is exclusively triable by the Court of Sessions, the learned Judicial Magistrate has committed the case to the Court of Sessions under Section 209 of Cr.P.C. The learned I Additional Sessions Judge, Krishnagiri, on appearance of the accused, framed charges against the accused for various offences under IPC as indicated above and when questioned the accused pleaded not guilty. On the side of the prosecution P.W.1 to P.W.16 were examined and Ex.P.1 to Ex.P.20 were exhibited and M.O.1 to M.O.18 were marked. 3. P.W.1 is the son of the deceased and also the husband of A2-Shanthi. According to him, A1 is a LIC agent, who used to visit his house very often and that he heard that there is illicit intimacy between A2 and A1 and on a day prior to the occurrence, he (P.W.1) left to Coimbatore in order to attend a seminar and before leaving for Coimbatore he requested his mother to stay in his house where the occurrence had taken place. On 23.09.2002 at about 5.00 pm his (P.W.1s) brother-in-law Basker had informed that his (P.W.1s) mother was serious, and immediately he rushed to Madras and reached his house at 11.00 pm on 23.09.2002 and that A2, his wife, had informed that four masked robbers have killed his mother and stolen the gold ornaments from the bureau. Ex.P.1 is the signature of A2 in Ex.P.17-statement. He has also identified M.Os.1 to 11 as the jewels belonging to his deceased mother. 4. P.W.2-Chandra is a neighbour of P.W.1. According to her, she heard a distress call from the house of P.W.1 on 23.09.2002 at about 3.45 pm and when she responded to the call and went inside the house of P.W.1 saw A2-Shanthi tied up in a chair and in the bed room Thukkabai, deceased mother of P.W.1, was lying dead. 4. P.W.2-Chandra is a neighbour of P.W.1. According to her, she heard a distress call from the house of P.W.1 on 23.09.2002 at about 3.45 pm and when she responded to the call and went inside the house of P.W.1 saw A2-Shanthi tied up in a chair and in the bed room Thukkabai, deceased mother of P.W.1, was lying dead. According to her, A2 had informed her that four masked robbers came and snatched the chain of A2 and stolen the other ornaments kept in the bureau and also the jewels of the deceased Thukkbai and that Dr.Ashok Kumar came to the place of occurrence at 4.15 pm and after examining Thukkabai pronounced her dead. 5. P.W.3-Visvabarathi, an advocate, would depose that on 23.09.2002 at about 3.30 pm, he saw a crowd in front of the house of P.W.1 and on enquiry he was informed that some masked robbers have committed robbery of jewels kept in the bureau in the house of P.W.1 after murdering Thukkabai, the mother of P.W.1 and also after tying A2 in a chair and that on going inside the house of P.W.1 he saw A2 tied up with a telephone wire in a chair and gagged with a piece of cloth and that he untied A1 with the help of P.W.10. According to him, he had immediately contacted Dr.Ashok Kumar (P.W.4) and requested him to come to the place of occurrence and Dr.Ashok Kumar came to the place of occurrence and after examining Thukkabai had informed that she is no more. A2-Shanthi had informed him that two masked robbers have stolen the jewels after murdering Thukkabai and after tying her in a chair. He has also informed the police through his cell-phone at about 4.00 pm on the same day. According to him, he also talked to Thukkabai at 9.00 am on the same day in her varanda and that he knows A1, who is working in a cycle shop. According to him, he also found A1 in the crowd on the same day evening. He has further deposed that he has not seen A1 visiting the house of Shanthi on the date of occurrence, but prior to the occurrence A1 visited the house of Shanthi. He has categorically stated that he never saw A1 & A2 together at any place. At this juncture, he was treated as a hostile witness. 6. He has further deposed that he has not seen A1 visiting the house of Shanthi on the date of occurrence, but prior to the occurrence A1 visited the house of Shanthi. He has categorically stated that he never saw A1 & A2 together at any place. At this juncture, he was treated as a hostile witness. 6. P.W.4-Dr.Ashok Kumar would depose that he received a phone call from P.W.3-Advocate Visvabarathi at 3.30 pm on 23.09.2002 informing that a lady in the adjacent house is lying unconscious and requested to attend her immediately and that he immediately responded to the call and went to the place of occurrence and examined Thukkabai and informed P.W.3 that she is dead. He has further deposed that he found A2 also in the house, but could not see any injury on the person of A2. He had seen some contusion around the neck of the deceased. He had also seen A1 standing near the house of P.W.1 and that A1 is the son of his family friend, but on the date of occurrence he did not speak to him. 7. P.W.5-Vasantha has not supported the case of the prosecution. Hence, she was treated as a hostile witness. 8. P.W.6 is the brother of P.W.1 and another son of the deceased Thukkabai. He would depose that his mother used to stay 15 days in a month with P.W.1 and another 15 days with him (P.w.6). According to him, he had visited the house of P.W.1, 15 days prior to the date of occurrence and while he was in the house a phone call came to the house of P.W.1, which was attended to by A2, who later informed that A1 had talked to her in phone and that on 23.09.2002 at about 4.00 pm P.W.3 had informed him over phone that his mother was murdered and immediately he came to the house of P.W.1 where A2 had informed that four masked persons have committed the crime and stolen the jewels. 9. P.W.16 is the Inspector of Police, who on information visited the place of occurrence at 4.45 pm on 29. 2002 after registering the case under Cr.No.1207 of 2002 on the basis of the complaint preferred by A2-Shanthi under Ex.P.17. Ex.P.18 is the copy of the FIR. He had prepared observation mahazar Ex.P.2 in the presence of P.W.7. 9. P.W.16 is the Inspector of Police, who on information visited the place of occurrence at 4.45 pm on 29. 2002 after registering the case under Cr.No.1207 of 2002 on the basis of the complaint preferred by A2-Shanthi under Ex.P.17. Ex.P.18 is the copy of the FIR. He had prepared observation mahazar Ex.P.2 in the presence of P.W.7. He has also recovered M.O.12-blue colour saree, M.O.13-telephone wire under Ex.P.3-recovery mahazar in the presence of P.W.7. M.O.14 is another saree recovered under Ex.P.4 in the presence of P.W.7. P.W.16 had drawn a rough sketch Ex.P.19 and has made arrangements for taking photoes of the seen of occurrence through P.W.12. M.O.5 (series) are the photes and M.O.6 (series) are the negatives. P.W.16 had conducted the inquest on the corpse of the deceased in the presence of the witnesses. M.O.14 is the saree alleged to have been used by the accused for strangulating the deceased. He has also made arrangements to lift the finger prints from the place of occurrence and also pressed into service sniffer dogs. The corpse was sent for postmortem through P.W.15, who had identified the corpse to the doctor P.W.13 and after the post-mortem had recovered M.O.16-red colour saree, M.O.17-blue colour skirt & M.O.18-jacket and handed over the same to P.W.16 with his special report Ex.P.16. P.W.16 has examined the witnesses and recorded their statements. During his investigation from the statement of Balaji, Mani, Mahendran & Sundarabaskar, he came to know that the crime was committed only by A1 & A2. He had arrested A1 on 25.09.2002 at about 6.00 am, who gave a voluntary confession statement in the presence of P.W.14-Sundaram, which was recorded by him (P.W.16) in the presence of P.W.14-Sundaram and another witness Thangaraj. He has also recovered a love letter written by A2 to A1, which was marked as Ex.P.11. On the basis of the confession statement the accused had taken him along with the other witnesses to the place where he had hidden the jewels stolen from the house of P.W.1 after committing the murder of Thukkabai. The jewels, according to P.W.16, were produced by A1 from the place were they were hidden at the land belongs to one Mani S/o.Mariyappan at Karukkan Chavadi. The said jewels were recovered under Ex.P.9-mahazar in the presence of P.W.14. The admissible portion of the confession statement of A1 is Ex.P.10. The jewels, according to P.W.16, were produced by A1 from the place were they were hidden at the land belongs to one Mani S/o.Mariyappan at Karukkan Chavadi. The said jewels were recovered under Ex.P.9-mahazar in the presence of P.W.14. The admissible portion of the confession statement of A1 is Ex.P.10. Ex.P.11 is the letter written by A2 to A1, which was recovered under Ex.P.12-mahazar in the presence of P.W.14. P.W.16 has recorded the statement of A2 on the same day between 8.00 and 10.00 am. Ex.P.17 is the admissible portion of the statement of A2. Ex.P.16 is the signature of P.W.14 in Ex.P.17. P.W.16 has also recovered M.O.15-in skirt of A2 and also Ex.P.13-letter written by A1 to A2. Ex.P.14 is the search list. Ex.P.15 is the recovery mahazar for the above said material objects. 10. P.W.8 is the father of P.W.1 and P.W.6. He would admit that A2 is his daughter-in-law and that he knows A1 also, who used to visit the house of P.W.1 often. According to him, a few weeks prior to the occurrence his wife, deceased Thukkabai, had informed about the illicit intimacy between A1 and A2 and that he had seen his wife on the date of occurrence lying dead in the bed room with injury in the neck. 11. P.W.9 is the sister of P.W.1. According to her, she had seen both A1 & A2 in a milk gova stall. She has also stated that at the time when she saw the dead body of her mother in the place of occurrence, the sniffer dog was pressed into service. 12. P.W.10 is a neighbour, who heard distress call at 3.45 pm on 23.09.2002 from the house of P.W.1. When he went inside the house of P.W.1 he saw P.W.3, advocate Visvabarathi untying the rope with which A2-Shanthi was tied up in a chair. He had also seen the mother of P.W.1 Thukkabai lying dead in the bed room. According to him, A2 had informed P.W.3-Visvabarathi and also to him that 4 masked men have committed the crime and stolen away the jewels. According to him, he went along with P.W.1, A2 & P.W.7 to the police station on the next date ie., on 29. 2002 and saw the jewels said to have been stolen away by the robbers on the table. 13. P.W.11 has not supported the case of the prosecution. According to him, he went along with P.W.1, A2 & P.W.7 to the police station on the next date ie., on 29. 2002 and saw the jewels said to have been stolen away by the robbers on the table. 13. P.W.11 has not supported the case of the prosecution. Hence, he was treated as a hostile witness. P.W.13 is the doctor, who had conducted autopsy on the corpse of the deceased. Ex.P.8 is the post-mortem certificate. 14. After completing the formalities P.W.16 has filed the final report against A1 and A2. 15. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused would deny their complicity with the crime. After going through the evidence both oral and documentary let in before the trial Court, the learned trial judge has come to the conclusion that the charges levelled against the accused have not been proved beyond any reasonable doubt and accordingly acquitted the accused from all the charges levelled against them, which necessitated P.W.1 to file this revision. 16. Now the point for determination in this revision is whether the findings of the learned trial judge is full of manifest error and perverse in nature to warrant any interference from this Court? 17. The Point:- 17(a) Heard Mr.K.L.Sekar learned counsel appearing for the revision petitioner and Mr.R.Karthikeyan learned counsel appearing for R1 & R2 and Mr.V.R.Balasubramanian, learned additional Public Prosecutor for R3 and considered their respective submissions. 17(b) There is no eye witnesses to the occurrence. The complaint Ex.P.17 itself was preferred by A2. According to her, on 23.09.2002 at about 3.30 pm four masked robbers trespassed into the house and after committing the murder of her mother-in-law Thukkabai and also after tying her up in a chair with a piece of telephone wire, had stolen the jewels M.O.1 to M.O.11 from the person of the deceased Thukkabai and also from her person and the from bureau. According to P.W.16, on investigation it was brought to light that A1 & A2 have committed the crime. P.W.16 in his evidence would categorically admit that from the friends of A1 & A2 viz. Balaji, Mani, Mahendran & Sundarabaskar, he came to know that the heinous crime was committed only by A1 & A2. Unfortunately in this case none of the above said witnesses were examined on the side of the prosecution. P.W.16 in his evidence would categorically admit that from the friends of A1 & A2 viz. Balaji, Mani, Mahendran & Sundarabaskar, he came to know that the heinous crime was committed only by A1 & A2. Unfortunately in this case none of the above said witnesses were examined on the side of the prosecution. The entire case of the prosecution hinges upon the recovery of .M.O.1 to M.O.11 under Section 27 of the Indian Evidence Act. According to P.W.16, the Investigation Officer, he had arrested A1 on 25.09.2002 and recorded his voluntary confession statement in the presence of P.W.14, who is the then VAO of Kaveri Pattinam town. Ex.P.10 is the admissible portion of the confession statement of A1. According to P.W.14, the accused took P.W.16 and other witnesses to the land belonging to one Mani S/o.Mariyappan and unearthed M.Os.1, 3, 7, 8, 9 & 11 (jewels) on the same day which were recovered by P.W.16 under Ex.P.9. So according to the prosecution, M.Os.1, 3, 7, 8, 9 & 11 (jewels) said to have been stolen by the accused after committing the crime were recovered on 29. 2002 under Ex.P.9. But P.W.10, an independent witness, who rushed to the place of occurrence after hearing the distress call along with the advocate Visvabarathi/P.W.3 at about 3.45 pm on 23.09.2002, in his evidence has deposed to the dismay of the prosecution case that he had seen all the jewels on the table in the police station on 29. 2002 when he along with P.W.1, P.W.7 and A2-Shanthi went to the police station. So according to P.W.10 all the jewels were seen on the table of the police station on the very next day of the occurrence. But according to P.W.16 he had recovered the jewels on the basis of the confession statement of A1 & A2 on 29. 2002. So the case of the prosecution that the jewels M.O.1 to M.O.11 were recovered under Section 27 of the Evidence Act, cannot be believable. 17(c) Further in this case, the motive alleged on the case of the prosecution to commit the crime by A1 & A2 is that the deceased Thukkabai had seen both A1 & A2 having cohabitation in the bathroom and that only to prevent her from revealing the same to the husband of A2 and also to the world they have committed the murder. According to P.W.16, in skirt of A2 was recovered under Ex.P.15. But admittedly the said in skirt M.O.17 was not sent for chemical examination to ascertain whether it contains any stain of semen. Further in this case it is in evidence that finger prints have been lifted from the scene of occurrence and the sniffer dog was also pressed into service. But unfortunately the Investigating Officer has not produced the report of the finger print expert and also the report of the handler of the sniffer dog. It is evidence that the sniffer dog has not caught neither A2 nor A1. Both P.W.3 and P.W.10, who rushed to the place of occurrence after hearing the distress call have also seen A1 near the house of P.W.1. So the evidence of P.W.16 that A1 was not seen on 29. 2002 also falls to the ground. 17(d) The learned counsel appearing for A1 & A2 relying on 2002(6) SCC 650 [Bindeshwari Prasak Singh @ B.P.Singh and others Vs. State of Bihar (now Jharkhand) and another], would contend that the revisional powers of the High Court under Section 401 of Cr.P.C., is very limited and it is not justifiable for the High Court in interfering with the order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence. Pointing out the earlier decision of the Supreme Court in AIR 1951 SC 196 (D.Stephens Vs. Nosibolla), AIR 1962 SC 1788 (K.Chinnaswamy Reddy Vs. State of A.P.), 1973(2) SCC 583 (Akalu Ahir Vs. Ramdeo Ram), 1975(4) SCC 477 (Pakalapati Narayana Gajapathi Raju Vs. Bonapalli Peda Appadu) and AIR 1968 SC 707 (Mahendra Pratap Singh Vs. Sarju Singh), it has been observed by the Honourable Apex Court in the above ratio as follows:- "We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party." 17(e) The learned counsel Mr.K.L.Sekar appearing for the revision petitioner relied on 2004 SCC (Cri) 999 (Zahira Habibulla H.Sheikh and another Vs. State of Gujarat and others), wherein the Honourable Apex Court has laid down the principle as under what circumstances retrial can be ordered in an appeal. Only to find out the truth and dispense justice impartially and if seirous infirmities, telltale even to the naked eye of an ordinary man, arbitrariness, where truth had become a casualty, without parallel, and which stood on its own as an exemplary one, special of its kind, necessary to prevent its recurrence and if its found that it is fit and proper then only an order of retrial can be made. Admittedly this is not an appeal. But a revision preferred by P.W.1, who has been treated as hostile witness before the trial Court. No doubt, a heinous crime has been committed. Admittedly this is not an appeal. But a revision preferred by P.W.1, who has been treated as hostile witness before the trial Court. No doubt, a heinous crime has been committed. But the prosecution has fumbled in the investigation to bring the real culprits to book. Even to fasten the liability on A1 & A2, the investigating agency has not discharged its duty firmly according to their conscience. The complaint was preferred by A2 in this case. According to her, at one place, 4 masked robbers have committed the crime and at another place, she would depose 2 masked robbers have committed the crime. In the absence of eye witness to the crime apart from A2, the prosecution had rightly resorted to the assistance of finger print expert and also the service of sniffer dog. But unfortunately in this case the prosecution has failed to produce the report of the finger print expert and the report of the handler of the sniffer dog. The reasoning assigned by P.W.16 for not producing the report of the finger print expert relating to A2 is that she is an inmate of the house and had dealt with the bureau in which the stolen jewels were kept. But A2 is cited as one of the accused in this case and recovery of the jewels on the basis of the confession statement of A2 is also relied on by the prosecution. Under such circumstances it would have been a better evidence for the side of the prosecution if they would have produced the report of the finger print expert. Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge, which is neither perverse nor manifestly illegal warranting any interference from this Court. Point is answered accordingly. 18. In the result the revision is dismissed confirming the judgment of the trial Court in S.C.No.355 of 2002 on the file of the I Additional Sessions Judge, Krishnagiri.