BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Orders Reserved on : 05.02.2018
Orders Pronounced on: 20.02.2018
THE HONOURABLE DR.JUSTICE S.VIMALA
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
Crl.A.(MD) No.390 of 2017 and
3. Amirtharaj … Appellants/A1 to A3
State rep. by its,
The Inspector of Police,
Thevaram Police Station,
(Crime No.141 of 2012) … Respondent/Complainant
Prayer: Appeal filed under Section 378 of the Code of Criminal Procedure
praying to call for the records in the judgment of the Principal District and
Sessions Judge, Theni in S.C.No.144 of 2013 by judgment dated 11.09.2017 and
set aside the same and pass such further or other orders as this Hon’ble
Court may deem fit and proper in the circumstances of the case.
!For Appellants : Mr.S.Ramasamy
^For Respondent : Mr.C.Ramesh
Addl. Public Prosecutor
?The world has enough for everyone’s need, but not enough for
everyone’s greed.? – Mahatma Gandhi
A will is a legal document that indicates how a person wants his
or her estate (money and property) to be distributed after death. A will
also may describe any wishes for funeral and burial arrangements and may
designate guardians for minor children. A testator can change a will at any
time. If one does not have a will before death, intestate succession rules
determine how a person’s assets are distributed. A will is central to a
person’s estate planning. In most cases, people create wills to protect the
assets they have worked hard for and to ensure they are passed to appropriate
individuals or organizations.
2. Here is the case where the deceased, while planning to protect
his estate has failed to protect his life. The plan of the deceased towards
his estate planning for longer living has ultimately ended in shorter living
by his expeditious death on account of murder. This incident perhaps would
not have taken place if the deceased had known that he is entitled to write
any number of Wills till his death by revoking the previous Wills and that
the Will itself would come into operation only after his death. Perhaps, what
did not occur to his mind is that this very same rule of Will coming into
effect after death has operated as an instigation to an accused to expedite
the death of the decesaed.
3. The conviction and sentence passed as against all the three
accused by the judgment dated 11.09.2017 made in S.C.No.144 of 2013 by the
learned Principal District Judge, Theni, runs as under and challenging the
same, the appeal is filed.
Conviction and Sentence
Section 302 IPC
Life imprisonment with a fine of Rs.5,000/- in default 2 months S.I.
Section 511 r/w 302 r/w 201 IPC
Three years R.I. With a fine of Rs.500/- in default one month S.I.
Section 302 r/w 511 r/w 201 IPC
Three years R.I. with a fine of Rs.500/- in default one month S.I.
Case in brief:
4. The deceased was residing in the house of the 1st and 2nd
accused and he parted company of his wife about 25 years before. The son had
been employed elsewhere. The second accused is the wife of the first accused
and the third accused is the brother of the deceased. The deceased Bose Raj
had properties at Devaram village. He had executed a Will dated 22.03.2010 in
favour of the first accused, who is not a relative to the deceased and the
Will had been registered at the office of the Sub-Registrar at Devaram.
According to the Will, the property would be enjoyed by the deceased till his
life time and after his demise, the property would go to the first accused.
5. According to the case of the prosecution, in order to
immediately get title to the property, the accused 1 and 2 with the
assistance of A3 and with the conspiracy and intention to kill the deceased,
murdered the deceased. The second accused pushed the deceased down on the
floor, the first accused, using tremendous pressure through legs, pressed the
private part of the deceased; second accused squeezed the private part with
hands and thus caused the death of the deceased. The deceased was admitted at
Theni Medical College Hospital and he died on 30.07.2012 at about 4.00
o’clock in the early morning.
6. In order to erase the evidence and with the intention to
escape from the clutches of law, the accused persons informed the Doctor that
the death of the deceased was a natural death and thereafter, took the body
to Muthulingapuram and made all arrangements to dispose of the dead body.
7. In the meantime, the wife of the deceased gave a complaint to
Devaram Police Station and a case was registered under Section 174 Cr.P.C.
and thereafter it was sent to the Executive Magistrate for enquiry. The
Inspector of Police, after receiving the report, altered the offence from
Section 174 Cr.P.C. to Section 302 IPC and continued investigation. After
getting the body, being subjected to postmortem and after conducting
investigation, he laid the final report against accused persons under Section
302 and 201 IPC. The accused persons as usual have disputed their involvement
in the occurrence.
8. The prosecution, in order to substantiate the offences against
the accused, have examined 18 witnesses and marked 12 documents through
cross examination PW13, Ex.D1 has been marked.
9. After analyzing the evidence adduced before it, the Trial
Court came to the conclusion that the circumstantial evidence against the
accused persons were cogent, reliable, complete, with no missing links, found
the accused guilty and awarded the sentence as stated supra. Challenging the
conviction and sentence, the appeal has been filed under the following
i.The evidence of PW1 to 3 are not acceptable, as their evidence is
contradictory to the statement made under Section 161(3) Cr.P.C.
ii.The evidence of the Doctor, who conducted Postmortem (PW13) should not
have been accepted, as the opinion expressed in the inquest report is totally
contradictory. In any event, it is not the conclusive evidence;
iii.The evidence of PW16 is that there is a possibility of the deceased
receiving penal injury on account of fall on the ground and the implication
is that it could not have been caused by Appellants 1 2;
iv.Motive for the occurrence is not established;
10. Towards substantiating the grounds, the learned counsel for
the appellants would state that there could not have been any intention on
the part of the accused 1 2 to cause the death of the deceased with whom
there is no enmity for Accused 1 2. It is pointed out that leaving the wife
and son, the deceased was staying in the house of the accused 1 2 and in
the absence of the enmity, there is no necessity for A1 A2 to cause the
death of the deceased. This contention is like a cat sitting on a wall,
waiting to jump on either side. The circumstances as narrated by the learned
counsel for the accused coupled with the terms of the Will has proved the
motive for the occurrence.
11. The learned Additional Public Prosecutor appearing for the
State would submit that the motive for the occurrence is spoken to by PW3 /
Ganesan, who has spoken about the quarrel between the deceased and A1. PW3
has stated that when he went to the house of Renganathan (A1), there was a
wordy quarrel between Renganathan and the deceased; the deceased wanted
Renganathan to return the Will and money, which he had entrusted to the first
accused and that this death had taken place on the very next day of dispute.
12. In this context, Ex.P4 / Will dated 22.03.2010 must receive
the attention of the Court. Perusal of the Will dated 22.03.2010 would go to
show that it is a registered document. The execution of the Will was spoken
to by PW12 / Selvem. Selvam has spoken about the fact that he was called by
the deceased for the purpose of signing the Will, which was to be executed in
favour of the first accused and pursuant to the invitation by the deceased,
he and periyakaruppasamy went to the office of the Registrar and signed in
the Will as witnesses.
13. It is relevant to point out that the existence of the Will in
favour of the first accused is not under dispute. The fact that when the wife
and son were alive, the deceased took shelter in the house of A1 A2 is also
not under dispute. At this juncture, the recital in the Will is very
important. As per recital in the Will, the property of the deceased would be
enjoyed by him till his life time and after his life time, the title to the
property would pass on to the first accused. The relevant lines read as
?moapy; fz;l brhj;ij ehd; vd; Ma[s; fhyk; tiu mDgtpj;J tUntdhft[k;/ vd;
Ma[Sf;Fg;gpd; moapy; fz;l brhj;Jf;fis /////// u’;frhkp mtu;fs; Fkhuh; mth;fs;
Relying upon this recitals, the learned counsel for the respondent would
submit that in order to enjoy the property immediately, the accused 1 and 2
have felt that causing the death of the deceased would be the effective
method and thus, there is every intention to cause the death of the deceased
and thus, the motive stands proved without any iota of doubt.
14. It may not be out of place to mention that the document
stands in the name of the first accused. The quarrel had taken place only
between the first accused and the deceased as spoken to by PW3. The
prosecution case entirly relies upon the circumstantial evidence. The
prosecution relies upon the residential accommodation taken by the deceased
in the house of A1 A2 and the Will executed by the deceased in favour of
the first accused and the accused 1 2 accompanying the deceased on the
fateful night in the ambulance to the hospital.
15. Strangely, the hospital records contain the signature of A3
and his cousin brother and not the signature of A1 A2. However, the
deceassed had been admitted in the hospital at about 2.30 to 3.00am in the
morning. Though initially, PW16 / Dr.Venkatesan was not informed about the
exact medical condition of the patient, during which, the Doctor came to the
conclusion that it is a natural death. Only during Postmortem, the penal
injury has been brought to light.
16. Who could have been responsible for the penal injury is the
main issue? Whether it is A1 A2 together or A1 alone, is the issue.
17. Admittedly, A3 was not in the place of occurrence even
according to the case of the prosecution. In the absence of any direct
evidence regarding participation of A1 A2, the prosecution relies upon the
terms of Will and the penal injury. Under the terms and conditions of the
Will, A1 is the beneficiary, if the death of the decesaed occurs immediately.
The plausible conclusion is that it is A1, who would be the most interested
person to cause the death of the deceased. Therefore, the participation of A1
cannot be disputed.
18. With regard to the cause of death, the evidence of Dr.Juliana
/ PW13 and the Postmortem report under (Ex.P5 Ex.P6) explicitly speaks
about the same. PW13 had given a clear cut evidence that the bright red
colour contusion of size 4x4cm seen over the dorsal aspect of the penis is
sufficient to cause death and the deceased would appear to have died of that
18.1. it is contended that this penal injury is possible on
account of a fall. This contention cannot be accepted, as there is no
associated injuries over any part of the body either in the front portion or
in the back portion. Therefore, the penal injury caused is not an injury
sustained, but it is an injury caused.
18.2. The learned counsel for the accused would contend that the
first accused himself is an aged person and having attained the status of
senior citizen, could not have got the physical capacity to cause such
injuries. The learned counsel representing the State would submit that the
deceased, who was also a Senior Citizen, having trusted the first accused and
having decided to part with the property, even though he had wife, two
daughters and a son, should not have been michieviously killed and that to
cause a penal injury, no such physical capacity is required and therefore, it
is a case where the accused has to suffer the maximum punishment. The learned
counsel appearing for the State would further submit that when the deceased
was under the care and custody of the first accused, having taken asylam
under one roof, it is within the personal knowledge of the first accused to
explain the circumstances under which the deceased sustained penal injury.
This is expected of the accused under Section 105 of the Indian Evidence Act.
In the absence of the explanation coming from the mouth of the first accused,
then the first accused is impliedly responsible for the penal injuries
sustained by the deceased.
19. The learned counsel for the appellants would submit that this
opinion is contra to the inquest report, where the opinion is that the death
is due to kidney problem. Admittedly, inquest report only speaks about the
apparent cause of death and the Postmortem report speaks about the actual
cause of death. At the time when the inquest report came out, the witnesses
to the inquest were made to believe that the deceased was suffering from
kidney ailment. Obviously, the penal injuries being not external, being not
disclosed, was not within the knowledge of either the Doctor (PW16), who
treated initially and also not to the persons who participated in the
inquest. Therefore, believing the version of A3, inquest report might have
been brought out. When the Postmortem report, which is scientific, based on
expert opinion reveals that the death is due to penal injury, there is no
reason to disbelive the postmortem report. Then, the consequential question
is, who is responsible for this penal injury?
20. The facts and circumstances proved by the prosectuion only
point out without any iota of doubt, only the first accused. The
participation of A2 is not conclusively established and it remains in the
sphere of surmises and conjectures. The participation by A2 might have been
there or might not have been. The participation may be open or silent. There
may be circumstances, where the second accused would not have participated as
her husband was directly in the scene. The prosecution case describes the
role of A1 and A2 distinctly as if there had been an eyewitness to the
occurrence, but the evidence is lacking, so far as A2 is concerned. Under the
circumstances, the benefit of doubt should go to the second accused.
21. So far as third accused is concerned, he is the brother of
the deceased. The only evidence against A3 is that he took the deceased,
while he was fighting for his life in an ambulance to the Government
Hospital. It is not alleged that the third accused was involved in causing
injury to the deceased. It is also not known whether the third accused took
the deceased to the hospital with the knowledge that he suffered from penal
injury or without the knowledge of the penal injury. The act of the third
accused taking the deceased to the hospital cannot be construed as towards
erasing the evidence. The very act of taking the body of the deceased to the
native place cannot also be construed as amounting to suppression of
evidence, as it is customary to take the body of the deceased to the native
place. In the absence of the active involvement of A3 in the entire episode,
the case of the prosecution that he attempted to suppress the evidence of
murder of the deceased cannot be accepted.
22. In the result, the Criminal Appeal is partly allowed and the
conviction and sentence passed as against the first accused is confirmed. The
conviction and sentence imposed as against A2 A3 by the learned Principal
District and Sessions Judge, Theni dated 11.09.2017 in S.C.No.144 of 2013 is
set aside and A2 A3 are ordered to be acquitted of the charges and they are
ordered to be released, if not wanted in any other case. The bail bonds, if
any executed by A2 A3 shall stand cancelled and fine amount, if any in
respect of A2 A3 shall also be refunded. Consequently, connected
miscellaneous petition is closed.
23. Before parting with the case, we would like to highlight the
protection available to Senior Citizens in terms of their life and property,
and the responsibility of the State Government to create awareness regarding
the protection available in terms of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007.
23.1. The protections available to Senior Citizens are as
i) In 2007, the Maintenance and Welfare of Parents and Senior
Citizens Act was passed to provide maintenance support to elderly parents and
senior citizens. The Act establishes the Maintenance Tribunal to provide
speedy and effective relief to elderly persons. Section 19 of the act also
mandates the establishment of an old age home in every district and provides
for the protection of life and property of the elderly.
ii) Parents can opt to claim maintenance either under Section 125
of the Criminal Procedure Code, 1973 or under this Act ? they cannot opt for
iii) Any person who is responsible for the protection and care of
a senior citizen and intentionally abandons the senior citizen completely is
liable to pay a fine of Rs 5,000 or be imprisoned for 3 months or both.
iv) Parents or senior citizens can avail the services of the
State Government appointed Maintenance Officer to represent their interests
during proceedings before the Maintenance Tribunal.
23.2. In the situations where a senior citizen after the
commencement of this Act, has transferred his property (movable or
immovable), by way of gift or any such transfer, but the condition that the
transferee shall provide him basic amenities and physical needs, is attached
with the transfer, and thereafter such transferee refuses or fails to fulfill
such condition, such transfer of property shall be deemed to have been made
by fraud, coercion or undue influence and the Tribunal can declare such
transfer as void.
23.3. Section 23 in The Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 reads as under:
?23 Transfer of property to be void in certain circumstances. ?
(1) Where any senior citizen who, after the commencement of this Act,
has transferred by way of gift or otherwise, his property, subject to the
condition that the transferee shall provide the basic amenities and basic
physical needs to the transferor and such transferee refuses or fails to
provide such amenities and physical needs, the said transfer of property
shall be deemed to have been made by fraud or coercion or under undue
influence and shall at the option of the transferor be declared void by the
(2) Where any senior citizen has a right to receive maintenance out of
an estate and such estate or part thereof is transferred, the right to
receive maintenance may be enforced against the transferee if the transferee
has notice of the right, or if the transfer is gratuitous; but not against
the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under
sub-sections (1) and (2), action may be taken on his behalf by any of the
organisation referred to in Explanation to sub-section (1) of section 5.
23.4. Before this Act came into existence, the only remedy
available to senior citizens in such a cases was to approach the court to ask
for the maintenance from the children to whom he had transferred the property
but then also such property would be the exclusive property of the transferee
and the senior citizen had no right on such property. But by applying the
provisions of this Act, a senior citizen can reclaim his property from the
transferee. Needless to point out that it is the duty of the State Government
to create awareness regarding the rights of Senior Citizens, as contemplated
under Section 21 of the Act, which reads as under:
?21 Measures for publicity, awareness, etc., for welfare of senior
citizen. ?The State Government shall, take all measures to ensure that?
(i) the provisions of this Act are given wide publicity through public
media including the television, radio and the print, at regular intervals;
(ii) the Central Government and State Government Officers, including
the police officers and the members of the judicial service, are given
periodic sensitization and awareness training on the issues relating to this
(iii) effective co-ordination between the services provided by the
concerned Ministries or Departments dealing with law, home affairs, health
and welfare, to address the issues relating to the welfare of the senior
citizens and periodical review of the same is conducted.?
24. We direct the State Government to implement Section 21 of the
Act in letter and spirit, so that the life of Senior Citizens are safe and
1. The Principal District and Sessions Judge,
2. The Inspector of Police,
Thevaram Police Station,
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,