BAIL SLIP --- That the petitioner viz Ganesan/Accused No.1 S/o.Kuppusamy was directed to be released on bail as per order dated 24.4.07 made in Crl.M.P.No.1/07 in Crl.A.No.152/07 on the file of this Court. BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL No.152 OF 2007 Ganesan .. Accused-1/ Appellant Vs. State rep. by Inspector of Police, Pondicherry State (Crime No.65/2003) .. Complainant/Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the conviction and sentence of the learned Principal Sessions Judge, Pondicherry made in S.C.No.36 of 2005, dated 29.12.2006. For Appellant : Mr.V.Gopinath, Senior Counsel for M/s L.Mahendran For Respondent : Mr.S.Natarajan, APP (Pondy) JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to a Judgment of the Principal Sessions Judge, Vellore in Special S.C.No.36 of 2005, whereby the appellant/accused shown as A-1 along A-2 stood charged under Sections 302 and 201 r/w 34 IPC. On trial, the appellant/accused was found guilty of both the charges and awarded imprisonment for life and also two years RI respectively with fine and default sentence. The trial Court made an order of acquittal against A2. 2. The short facts necessary for the disposal of the Criminal Appeal can be stated thus: (a) P.Ws.3 and 4 are sisters. The deceased married P.W.3 in the year 1984. A-1 wanted to marry P.W.4, sister of P.W.3. The https://hcservices.ecourts.gov.in/hcservices/ deceased married P.W.4 in the year 1987. Subsequently, A-1 married his sister's daughter Sumathy in the year 2000. After that, there were no talking terms. But A-1 was aggrieved that the deceased married P.W.4 as his second wife, when he desires to marry her. (b) On the date of occurrence, P.W.1, working as Watchman in Ravi Chettiyam Thoppu was informed by his wife that there were blood stains near the well. He went near the Well and found blood stains. P.W.1 along with his wife went to Aryankuppam Police Station and informed about this to P.W.16 Inspector. P.W.16, Inspector, along with others went to the place of occurrence and instructed two persons to get into the well. A cycle was also found near the well along with a plastic bag. The body of the deceased and other articles were taken out from the Well. (c) P.W.1 gave a statement Ex.P.1, on the strength of which a case came to be registered in Crime No.65 of 2003 for the offences punishable under Section 302 IPC. Ex.P.29 is the printed FIR, which was despatched to Court. (d) P.W.16, Inspector summoned Finger Print Experts and sniffing dog squad and prepared Observation Mahazaar Ex.P.3 and rough sketch Ex.P.30. An inquest was conducted by him in the presence of Panchayatdars and prepared Ex.P.31 Inquest report. Finger Print Expert came to the scene and lifted finger prints from the Beer bottle M.O.10. (e) P.W.13 took photographs from the scene of occurrence. P.W.13 also took the photos of finger print in M.O.10. P.W.16, Inspector seized the blood stained earth M.O.11, sample earth M.O.12 from the place of occurrence and also Beer bottle M.O.10 under a cover of mahazaar Ex.P.32. (f) P.W.6, Doctor who conducted post mortem over the dead body of the deceased gave his opinion that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by him. Ex.P.5 is the Post Mortem report. Ex.P.8 is the Chemical Analysis report. (g) P.W.16, Inspector arrested A1 and A2 on 28.05.2003 at 07.00 p.m. and they came forward to give confessional statement voluntarily. The admissible portion of the confession statement of the accused 1 and 2 are marked as Exs.P.34 and P.35 respectively. Pursuant to the statement given by A1, he produced M.O.16 knife and M.O.17 Lungi. Finger prints of both the accused were taken by P.W.16 and they were sent for comparison to P.W.12, who gave a report Ex.P.20. (h) P.W.17 took up further investigation, completed examination of witnesses and filed a final report on 03.11.2004. 3. The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the accused, prosecution examined 17 witnesses and also relied on 37 documents and 20 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. and they denied them as false. No defence witness was examined. After hearing the submissions made on either side and also on scrutiny of the materials available, the trial Court took a view that the prosecution has proved the case beyond reasonable doubt as far as A1 was concerned and found him guilty under Sections 302 and 201 IPC and awarded sentence and imprisonment referred to above and passed an order of acquittal against A2. The first accused preferred an appeal, which is taken up for consideration. 4. Advancing the arguments on behalf of the appellant Mr.V.Gopinath, learned Senior Counsel inter alia would submit that the prosecution had no direct evidence to advance and it rested its case on the circumstances. P.W.11 was examined to speak about the last seen theory that the accused was found in the company of the deceased, but actually, the witness turned hostile and thus the prosecution rests its case only on the finger print expert's evidence. 5. P.W.12 who was the Finger Print Expert has been examined. According to him, he took the photos, lifted the finger print in M.O.10 Beer Bottle, which was found near the Well. The photographs and finger prints of the deceased and accused were taken by the Investigating Officer and were sent for comparison. He found that the finger prints which were found in M.O.10 Beer bottle was found tallying with that of A-1 and has given his report Ex.P.20. The said part of the evidence cannot be attached with any evidentiary value. 6. A perusal of Ex.P.20 does not indicate anywhere how the decision was arrived at or how P.W.12 found that the finger prints found in M.O.10 Beer Bottle tallying with the finger prints of the accused. The finger prints of the accused are not at all produced before the Court. Apart from that the finger prints of the accused 1 and 2 taken by the Inspector were not sent to the Finger Print Expert through Court as contemplated under the Police Standing Orders, but actually sent directly. 7. Apart from that, according to the Investigating Agency, M.O.10 Beer Bottle found at the place of occurrence. Had it been true, it should have been placed in the observation mahazaar and also sketch. But, nowhere it is found. Hence, it would be clear that M.O.10 Beer Bottle had been actually planted by the prosecution. Even the finger prints taken from the Beer Bottle at the scene of occurrence would not be helpful for the prosecution case for the simple reason that the Beer bottle was actually neither found inside the Well, where the dead body was found nor outside the Well, but 200 or 300 feet away from the Well, the place of occurrence and therefore taking of finger prints on the Beer bottle which was actually found 200 or 300 feet away from the https://hcservices.ecourts.gov.in/hcservices/ place cannot be a reason to accept the case of the prosecution. Except this evidence, the prosecution had no evidence at all and hence it would be highly unfair to convict the appellant on the basis of such evidence. Therefore, the learned Senior Counsel prayed for acquittal of the first accused/appellant. 8. The Court heard the learned Additional Public Prosecutor for the State of Pondicherry on the above contentions and paid its anxious consideration on the submissions made and perused the materials available on record. 9. It is not in controversy that the dead body of the husband of P.W.3 was actually found in the Well belonged to one Ravichettiyar. The same was brought to the knowledge of the Police by P.W.1. The Inspector of Police took the complaint from P.W.1, registered a case, made an inquest on the dead body which was was subjected to Post Mortem by P.W.6 Doctor, who gave his categorical opinion that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by him and hence without any impediment, they could be factually recorded so. 10. In the instant case, a careful perusal of the materials indicate that prosecution had no direct evidence to offer. i.e., it rested upon its case on circumstantial evidence. The main circumstance relied upon by the prosecution was the last seen theory to be spoken by P.W.11. But P.W.11, when he was examined in Court has turned hostile and he has not spoken about that fact and therefore, the prosecution had no other evidence except the last seen theory. 11. The other circumstance is that the evidence of P.W.12 Finger Print Expert and his report Ex.P.20. The Court is afraid as to whether the evidence of P.W.12 and his report Ex.P.20 for conviction could be sustained for the following reasons:- According to P.W.12 Finger Print Expert, when he was called, he went to the spot and also lifted the finger print found in M.O.10 Beer Bottle. According to the Investigating Officer, an observation was made and he prepared Ex.P.3 Observation Mahazaar and also sketch. Nowhere the availability of M.O.10 Beer Bottle is noticed either in the Observation Mahazaar or in the sketch. Apart from this, it is not the case of the Investigator that it was M.O.10 Beer Bottle found either in the Well, where the dead body was found or outside the Well. But it was found 200 or 300 feet away. Therefore it is still doubtful whether M.O.10 Beer Bottle was actually available at the place of occurrence. Consequently, the report Ex.P.20 issued by P.W.12 cannot be attached with any evidentiary value for the reason that a perusal of the report does not indicate as to how he arrived at the decision, that the finger prints found in M.O.10 Beer Bottle and that of the first accused were found to be similar. https://hcservices.ecourts.gov.in/hcservices/ 12. Apart from this, there is nothing to indicate that either the photographs of the finger prints or the finger prints of the accused were also placed before the Court and thus it was nothing but denial of an opportunity to the accused to cross-examine the witness. 13. Added further in the instant case, according to the Investigator, he took the finger prints of A1 and A2 and sent them directly to the Finger Print Bureau, which he should not have done. Under the Police Standing Orders, the finger prints which have been taken, ought to have been sent to the Finger Print Bureau for the purpose of comparison through the Court concerned, but not done in the instant case. Under such circumstances, no evidentiary value could be attached either to the evidence of P.W.12 or to Ex.P.20 report given by him and if this part of the evidence is not available to the prosecution, the prosecution had no evidence at all to offer. 14. Thus, it would be clear that the prosecution has no circumstantial evidence in showing that P.W.3's husband was killed and the dead body was thrown into the Well and hence it failed to bring home the nexus of the crime with the accused appellant. Under the circumstances, the prosecution has miserably failed to prove its case. The lower Court has taken an erroneous view that the prosecution has proved its case beyond reasonable doubt. 15. In the result, this criminal appeal is allowed, setting aside the conviction and sentence imposed on the appellant by the learned Principal Sessions Judge, Pondicherry in S.C.No.36 of 2005. The appellant is acquitted of the charges levelled against him. The bail bond executed by him shall stand terminated. The fine amount paid by him will be refunded to him. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rg To 1.The Principal Sessions Judge, Pondicherry. 2.The Judicial Magistrate I Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 3. -do- Thro' The Chief Judicial Magistrate, Pondicherry. 4. The District Collector, Pondicherry. 5. The Director General of Police, Mylapore, Chennai-4. 6. The Superintendent, Central Prison, Cuddalore. 7. Inspector of Police, Ariyankuppam Police Station, Pondicherry 8. The Public Prosecutor, High Court,Madras. + 1 CC To Mr.L.Mahendran, Advocate SR NO.65538 + 1 CC to the Senior Government Pleader-cum-Senior Public Prosecutor for Pondicherry, SR NO.65276 CRIMINAL APPEAL No.152 OF 2007 RJ {CO} TP/4.12.08 https://hcservices.ecourts.gov.in/hcservices/