IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7-12-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.635 of 2010 Ramados .. Appellant vs State by: Inspector of Police Kayarlabath Police Station Perambalur District (Crime No.171 of 2009) .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Sessions Judge, Mahila Court, Perambalur, made in S.C.No.23/2010 dated 10.8.2010. For Appellant : Mr.A.Thiyagarajan For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Mahila Court, Perambalur, in S.C.No.23 of 2010 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded life imprisonment along with a fine of Rs.2000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the paternal grandfather of the deceased Parvathi. He was a resident of Adhichanur Village within the jurisdiction of the respondent police station. The deceased lost her mother in her childhood. Hence she was brought up by P.W.1. P.W.3 is also a close relative of the deceased. The accused/appellant who belonged to the same place, developed intimacy with her. Even before the marriage, she became pregnant. Then there was a demand to marry her, but he refused. She placed a complaint before All Women Police Station, Jayamkondam, and P.W.10, the Sub Inspector of Police, made an enquiry as a result of which, he came forward to marry her, and accordingly https://hcservices.ecourts.gov.in/hcservices/ married her on 6.6.2009. After the marriage, they were staying for a few days. While so, on 9.6.2009, the deceased took lunch to the accused/appellant who was in the forest area. P.W.1 also followed her. Suddenly he heard the distressing cry of his granddaughter, went nearby and witnessed that he pushed her down, strangulated her with the rope and also attacked her with a wooden-log. When P.W.1 went to the rescue, he was also criminally intimidated. The occurrence was witnessed by P.Ws.3 to 5. Then the accused/appellant fled away from the place of occurrence. Within a short span of time, she succumbed to the injuries. (b) P.W.1 proceeded to the respondent police station, where he gave a complaint, Ex.P1, to P.W.11, the Sub Inspector of Police, who was present at that time. On the strength of Ex.P1, the report, a case came to be registered in Crime No.171 of 2009 under Sec.302 o IPC. The printed FIR, Ex.P11, was despatched to the Court. (c) P.W.12, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P11, and also a rough sketch, Ex.P12. Then he recovered the material objects including the wooden log, from the place of occurrence. In the presence of witnesses and panchayatdars, he conducted inquest on the dead body of Parvathi and prepared Ex.P14, the inquest report. While the matter stood thus, the accused appeared before the Village Administrative Officer (VAO), P.W.8, and in the presence of his Assistant, P.W.9, he gave a confessional statement. The same was recorded. He also prepared a report marked as Ex.P15. Then the accused was taken to the police station and handed over to the Inspector of Police, and he was arrested. He came forward to give a confessional statement voluntarily. The same was recorded in the presence of the same witnesses. He also produced M.O.5, a bottle which contained the pesticide, and also M.O.2, coir rope, and they were all recovered under a cover of mahazar. (d) Pursuant to the requisition, P.W.2, the Civil Surgeon, attached to the Government Hospital, Ariyalur, conducted autopsy on the dead body of Parvathi and gave his opinion in Ex.P4, the postmortem certificate, that the deceased would appear to have died of asphyxia due to neck compression about 12-24 hours prior to autopsy. (e) On a requisition made, all the material objects were subjected to chemical analysis by the Forensic Sciences Department. The reports were received which are marked as Exs.P17 and P18, the chemical analyst's reports, and Ex.P19, the serologist's report. On completion of the investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 19 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence https://hcservices.ecourts.gov.in/hcservices/ witness was examined. The trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the above punishment. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution marched P.W.1 as an eyewitness and P.W.3 as the person who saw the accused/appellant running from the place of occurrence with the bloodstained lunghi; that both these witnesses could not have seen the occurrence at all; that according to P.W.1, the occurrence has taken place in a forest like area i.e., bush area, and all the plants were more than 7 feet height; that if a person is beyond that bush, he could not see the occurrence; that P.W.1 has categorically admitted that the wooden-log and rope were actually thrown by him immediately at the place of occurrence, and he ran away; but, the Investigator would claim that the wooden log was actually recovered from the place of occurrence; that though P.W.3 has claimed that he has seen the accused running from the place of occurrence, he has not stated that he left either with the rope or with the wooden-log, and thus it would also cast a doubt whether P.Ws.1 and 3 could have seen the occurrence at all. 5.Added further the learned Counsel that the prosecution much relied on the extra-judicial confession alleged to have been given by the accused to P.W.8, the VAO, but, that was not placed before the Court; that even the report has actually been marked as Ex.P15; but, P.Ws.8 and 9 have turned hostile; that according to them, the rope was actually recovered nearby the dead body, and thus the recovery alleged to have been made by the Investigator after the confessional statement, was one to be disbelieved. 6.The learned Counsel would further add that in the instant case, the prosecution relied on Ex.P1 as if it was the first information given by P.W.1 to P.W.11, the Sub Inspector of Police, on the strength of which the case came to be registered; that contrarily P.W.1 has categorically stated that the police personnel came to the spot immediately some time after the occurrence, and thereafter he went to the police station and gave a report, Ex.P1, to Ariyalur Police Station; that on the contrary, P.W.11 would claim that he was on duty as the Sub Inspector of Police in Kayarlabath Police Station, and P.W.1 came to the police station and gave a complaint Ex.P1, on the strength of which a case came to be registered; that under the circumstances, it is highly doubtful whether Ex.P1, the first information, would have come into existence as put forth by the prosecution; and that all would clearly be indicative of the fact that the prosecution has not brought forth the charge levelled against the appellant. 7.Added further the learned Counsel that the evidence of P.W.1 was not only inconsistent to each other, but also P.W.1 could not have seen the occurrence at all. Pointing to the cross-examination, the learned Counsel would submit that it became thoroughly shaky; that under the circumstances, it is highly unsafe to sustain a https://hcservices.ecourts.gov.in/hcservices/ conviction, but, the trial Judge has taken an erroneous view, and therefore the judgment of the trial Court has got to be set aside. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that following an incident that had taken place on 9.6.2009 in the morning hours, and after the registration of the case by P.W.11, the Sub Inspector of Police, the Investigation was taken up by P.W.12, the Inspector of Police of the Circle, and after the preparation of the inquest report, marked as Ex.P14, the dead body was subjected to postmortem by P.W.2, the Doctor, on the requisition made by the Investigator. The Medical Person who conducted the autopsy, was examined before the Court as P.W.2. He has categorically deposed that she died out of asphyxia due to strangulation. That apart, the cause of death as put forth by the prosecution, was never disputed by the appellant before the trial Court or before this Court. Hence no impediment is felt by the Court in recording so. 10.In order to substantiate that it was the accused who committed the murder of his wife by causing asphyxia by strangulation, the prosecution examined P.W.1 as an eyewitness, and P.W.3, a person, who actually saw the accused person running from the place of occurrence with the bloodstained lunghi. The Indian Criminal Jurisprudence does not require quantity of evidence, but quality of evidence. But, in the case on hand, P.W.1 is the only eyewitness. In a given case where the evidence of the individual witness stood uncorroborated, the Court must before acceptance, apply more care and caution. In the instant case, it is highly doubtful whether P.W.1 could have seen the occurrence for the following reasons. 11.Admittedly, the occurrence has taken place in a bush area, and completely there were thorn bushes. That apart, the plants were 7 feet height. P.W.1 would admit that when a person is standing by the other side of the bush, he could not witness the occurrence even during day time. According to P.W.1, he saw the occurrence, and immediately after the occurrence, the appellant had taken away both the rope and wooden-log from the place of occurrence. It is pertinent to point out that P.W.3 has given a contra evidence stating that he has not seen the accused either with the rope or with the wooden-log, but found him running. The Investigator would claim that the wooden-log was actually recovered from the place of occurrence in the presence of witnesses, and the rope was actually recovered following the confessional statement and on its production by the accused. It would be indicative of the fact that if really P.W.1 had seen the occurrence, there is no need for such a discrepancy to occur in his evidence. 12.Added circumstances are that in the instant case, P.W.1 would claim that he went to Ariyalur Police Station and gave Ex.P1, the report. Contrarily, P.W.11, the Sub Inspector of Police, would claim that he was the Sub Inspector of Police who was present at Kayarlabath Police Station, and at that time, P.W.1 came and gave https://hcservices.ecourts.gov.in/hcservices/ Ex.P1 report, on the strength of which the case came to be registered. Thus, it is highly doubtful whether Ex.P1, report, was given by P.W.1 at Ariyalur Police Station as claimed by him, or the case was registered by P.W.11, the Sub Inspector of Police, at the police station where he was on duty at that time. That apart, according to P.W.1, after the occurrence was over, he went to the Village, called his relatives and came to the spot, and at that time, the police personnel were also present. It would be indicative of the fact that the police official was actually informed about the occurrence even prior to Ex.P1 coming into existence. All would cast a doubt whether P.W.1 could have seen the occurrence at all. 13.As rightly pointed out by the learned Counsel for the appellant, P.W.1 could not have seen the dead body, and in view of the suspicion which he entertained, he would have given a complaint against the appellant. 14.Apart from the above, the prosecution has made an attempt before the trial Court to rely on the evidence of P.Ws.8 and 9. P.W.8 was the VAO. According to the prosecution, the accused/appellant appeared before P.W.8 and gave an extra-judicial confession in the presence of P.W.9, his Assistant. But, such an extra-judicial confession alleged to have been made, was never placed before the trial Court, and only Ex.P15, the report, which is alleged to have been prepared by P.W.8, was placed. It is unfortunate for the prosecution that P.Ws.8 and 9 have turned hostile. They were not only examined for the purpose of extra-judicial confession, but also for the purpose of recovery of the material objects pursuant to the alleged confessional statement made by the accused to the Investigating Officer on his arrest. Thus, their evidence did not support the case of the prosecution. 15.Now, at this juncture, applying the cardinal principle that in a given case where the prosecution rested its case on the solitary evidence, the Court before acceptance, must apply care and caution, this Court is afraid whether it could accept the evidence of P.W.1 to sustain a conviction. As rightly pointed out by the learned Counsel for the appellant, it would be highly unsafe to accept the evidence of P.W.1 to sustain a conviction when all other evidence are not available for the prosecution. However, the prosecution has proved the fact that Parvathi died out of asphyxia due to strangulation and nothing more. Under the circumstances, the judgment of the trial Court has got to be set aside by upsetting the same. 16.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of the charge levelled against him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The fine amount if any paid by him, shall be refunded to him. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar nsv https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Sessions Judge Mahila Court, Perambalur 2. -do- Through The principle Sessions Judge, Perambalur. 3. The Judicial Magistrate Ariyalur. 4. -do- Through The Chief Judicial Magistrate, Ariyalur. 5. The Director General of Police, Mylapore, Chennai-4. 6. The Inspector of Police Kayarlabath Police Station, Perambalur District (Crime No.171 of 2009) 7. The Superintendent, Central Prison, Thiruchirappalli. 8. The Public Prosecutor High Court, Madras. 9. The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr.A. Thiagarajan, Advocate Sr.88290 CRL.A.No.635 of 2010 TAM(CO) Eu 21.12.10 https://hcservices.ecourts.gov.in/hcservices/