IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.189 OF 2008 Ramesh .. Appellant Vs. State by Inspector of Police, D.Nagar Police Station, Puducherry (Crime No.258/2003) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Puducherry made in S.C.No.71 of 2005, dated 31.1.2008. For Appellant : Mr.R.John Sathyan For Respondent : Mr.S.Natarajan, APP (Pondy) JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Puducherry made in S.C.No.71 of 2005, whereby the sole accused/appellant stood charged under Sections 449, 302 and 382 IPC, tried, found guilty under Sections 448 and 302 IPC and awarded 3 months R.I. under Section 448 IPC and life imprisonment and to pay a fine of Rs.500/-, in default to undergo three months R.I. under Section 302 IPC and the accused was found not guilty under Section 382 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)The deceased Dhanam @ Dhanalakshmi was residing at Door No.37, Main Road, Poyyakulam, Pakkamudaiyanpet, Puducherry within the jurisdiction of the respondent police station. P.W.3 used to visit the house of the deceased often. On 27.11.2003 at about 5.30 p.m., when she visited her house, she found the dead body of Dhanalakshmi. Immediately, she informed to P.W.2, who is running a Video and Photo Studio shop https://hcservices.ecourts.gov.in/hcservices/ adjacent to the house of the deceased. In turn, he informed P.W.1, the daughter of the deceased, who visited the spot, found the dead body of her mother and also found that the nose stud and ear stud were missing. Immediately, she proceeded to the respondent police station, gave Ex.P.1, the complaint to P.W.12, the Sub Inspector of Police, who on the strength of the complaint, registered the case in Crime No.258 of 2003 under Section 302 IPC. Ex.P.17, the express F.I.R. was despatched to the Court. b)P.W.13, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared the observation mahazar and Ex.P.18, the rough sketch. Thereafter, sniffer dog was called and finer print experts were also called. The Finger print experts took the finger prints. The place of occurrence and the dead body were photographed through P.W.14, the photographer. Ex.P.25 (series), photos and Ex.P.26 (series) negatives were marked. P.W.13 recovered material objects from the place of occurrence. Thereafter, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.19, the inquest report. Then, the dead body was sent to the hospital for the purpose of autopsy. c)P.W.10, the Doctor attached to the Government General Hospital, Puducherry, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.13, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of asphyxia due to strangulation. d)At the time of investigation, P.W.4 gave statement that he saw the accused coming from the house of the deceased at or about the time of occurrence. On 29.11.2003, the accused was arrested and he came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.20. Thereafter, he took the police party to P.W.8, the Pawn Broker, from whom M.O.1, ear studs, M.Os.2 and 3, nose studs were recovered under Ex.P.10, mahazar. Thereafter, the accused has also produced Ex.P.23, receipt. Then, he was sent to judicial custody. All the M.Os were sent to the Court. Further investigation was taken up by P.W.15, the Inspector of Police. He recorded the statements of the witnesses. On completion of the investigation, he filed the final report. 3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 15 witnesses and relied on 27 exhibits and 10 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. After hearing the learned counsel on either side and looking into the materials available, the trial court took the view that the prosecution has proved the case beyond reasonable doubt, found him guilty as stated above and awarded punishments as referred to above. Hence this appeal has arisen at the instance of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that the prosecution had no direct evidence to offer, but it rested its entire case on two circumstances; that the first one was the last seen theory; that P.W.4 saw the accused coming from the house of the deceased Dhanam @ Dhanalakshmi at or about the time of occurrence, but he has turned hostile and hence his evidence was not available for the prosecution; that the second circumstance which the prosecution relied on was the alleged arrest, confessional statement and the recovery of material objects; that two witnesses were examined in this regard, namely P.Ws.6 and 7, but both of them have turned hostile; that the prosecution so far as the recovery was concerned, relied on the evidence of P.W.8, the pawn broker; that according to P.W.8, it was the accused who pledged the jewels; that Ex.P.10 is the recovery mahazar; that when it was looked into, two witnesses were signed, namely Ramu and Kodantharaman, but those two witnesses have not been examined; that it is pertinent to point out that nowhere P.W.8 has stated that the police party was brought by the accused and it was identified; that in the instant case, the prosecution would claim that earlier in Ex.P.1, the report, 2 grams ear stud and ½ gram nose stud have been mentioned, but at the time of recovery, it was shown as if 2 grams ear stud, 1 gram nose stud one and ½ gram nose stud one were recovered; that further, in the instant case, the prosecution had no evidence at all; that both the recovery witnesses have turned hostile; that even the evidence of P.W.8 was not worth mentioning to point out the guilt of the accused and under these circumstances, the lower court has taken an erroneous view and hence the appellant is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that one Dhanam @ Dhanalakshmi, the mother of P.W.1, was done to death in an incident that took place on day hours of 27.11.2003. The dead body was subjected to post-mortem by P.W.10, the Doctor, following the inquest conducted by the Investigating Officer. The Doctor has also issued Ex.P.13, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of asphyxia due to strangulation. This fact was never disputed by the appellant at any stage of proceedings and hence it has got to be recorded so. 7.In order to substantiate the charges levelled against the accused, the prosecution had no direct evidence to offer, but it rested its case on circumstantial evidence. As could be seen from the materials available, the prosecution has rested its entire case on two circumstances. Firstly, it was P.W.4, who found the accused coming out of the house of the deceased at or about the time of occurrence on 27.11.2003, but P.W.4 has turned hostile. The other part of the evidence relied on by the prosecution was the arrest, confessional statement and the recovery of M.Os.1 to 3. In the earlier report given by P.W.1, it was stated that ear stud and the nose stud of the mother were found missing and she has given the weight as for as ear stud was concerned as https://hcservices.ecourts.gov.in/hcservices/ 2 grams and nose stud was concerned, ½ gram, but when they were produced before the court, it was shown as if 2 grams ear stud, 1 gram nose stud one and ½ gram nose stud one were recovered, but the court is of the considered opinion that the difference noticed in the weightage will not in any way shake the prosecution case. 8.So far as the arrest, confessional statement and the recovery is concerned, the prosecution did not place evidence, which the court could accept and sustain conviction. Two witnesses were examined in respect of the alleged arrest, confessional statement and the recovery, who are P.Ws.6 and 7, but they have turned hostile. Further, the prosecution examined P.W.8, pawn broker, from whom M.Os.1 to 3 have been recovered. The recovery mahazar, according to the prosecution, is Ex.P.10. When Ex.P.10 is scrutinised, it would indicate that Ramu and Kodantharaman were the two witnesses for the recovery under Ex.P.10, but those two witnesses have not been examined. The prosecution had no explanation to offer. The prosecution examined only P.W.8. Nowhere P.W.8 has stated that the accused was brought by the police party to his shop and he identified the jewels. Further, in Ex.P.10, mahazar, he has not signed and any one of the attesting witnesses was not examined. Further, so far as the evidence of P.W.8 is concerned, except the assertion that the accused came and pledged the jewels, nothing else is available to indicate that it was actually pledged by the accused or they were recovered before him under Ex.P.10. Under these circumstances, it would be highly unsafe to sustain the conviction on the evidence of P.W.8, which in the opinion of the court cannot be accepted. So far as the arrest, confessional statement and the recovery is concerned, the evidence adduced by the prosecution was thoroughly shaky. Under these circumstances, the lower court has taken an erroneous view and hence the conviction and sentence imposed by the trial court have got to be set aside. 9.Accordingly, the conviction and sentence imposed on the appellant by the trial court are set aside and the appellant is acquitted of the charges levelled against him. He is directed to be released forthwith unless his presence is required in connection with any other case. The fine amount if any paid by the appellant shall be refunded to him. Accordingly, this criminal appeal is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Principal Sessions Judge, Puducherry. https://hcservices.ecourts.gov.in/hcservices/ 2.The Inspector of Police, D.Nagar Police Station, Puducherry. 3.The Public Prosecutor, High Court, Madras. 4. The Director General of Police, Mylapore, Chennai - 04. 5. The District Collector, Pondicherry. 6. The Superintendent, Central Prison, Pondicherry. 7. The Commissioner of Police, Puducherry. 8. The Section Officer, Criminal Section, High Court of Madras Madras. 2 cc To Mr.R.John Sathyan, Advocate, SR.68759. 1 cc To The Senior Government Pleader-cum -Senior Public Prosecutor for Pondicherry, SR.69160. CRL.A.NO.189 OF 2008 SSK(CO) RVL 18.12.2008 https://hcservices.ecourts.gov.in/hcservices/