IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NOS.454 AND 482 OF 2008 Dhavamani .. Appellant in CA.No.454/2008 Kuber @ Kuberan @ Abhimannan .. Appellant in CA.No.482/2008 Vs. The State represented by The Inspector of Police, Kandamangalam, Kandamangalam Police Station (Crime No.7/2002) .. Respondent in both the appeals These criminal appeals have been preferred under Section 374 (2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Villupuram made in S.C.No.52 of 2007, dated 18.6.2008. For Appellants : Mr.M.V.Karunakaran in CA.No.454 of 2008 Mr.V.Gopinath, SC for Mr.L.Mahendran in CA.No.482 of 2008 For Respondent : Mr.P.Kumaresan, APP - - - - COMMON JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, namely Criminal Appeal No.454 of 2008 preferred by A-2 and Criminal Appeal No.482 of 2008 preferred by A-1. https://hcservices.ecourts.gov.in/hcservices/ 2.These criminal appeals challenge the judgment of the Principal Sessions Division, Villupuram made in S.C.No.52 of 2007, whereby these appellants stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDINGS SENTENCE A-1 and A-2 S.376 IPC Guilty 10 years R.I. each and to pay a fine of Rs.2000/- each, i/d to undergo 3 months RI A-1 S.302 IPC Guilty Life imprisonment and to pay a fine of Rs.2000/-, i/d to undergo three months RI. A-1 S.404 IPC Guilty 1 year RI and to pay a fine of Rs.1000/-, i/d to undergo one month RI. A-2 S.302 r/w S.34 IPC Guilty Life imprisonment and to pay a fine of Rs.2000/-, i/d to undergo three months RI. The sentences were ordered to run concurrently. 3.The short facts necessary for the disposal of these appeals can be stated thus: a)P.W.2 is the mother and P.W.3 is the sister of the deceased Malar. At the time of occurrence, she was aged about 19 years. P.W.4 is the husband of P.W.3. At the time of occurrence, the deceased was employed in a shoe company at Mettupalayam. On the date of occurrence, namely on 16.1.2002, the deceased did not go to work, since it was holiday. P.W.3, who was already given in marriage, came to her mother's house on the festive occasion. On 16.1.2002 in the evening hours, the deceased left for temple. At that time, P.Ws.3, 4 and the other family members were in the house. The deceased, who went to temple, did not return after a long time. P.W.4 and others searched for her. At about 2.30 a.m., they found the dead body of the deceased in the sugarcane field of one Harikrishnan. P.W.3, since she was in advanced stage of pregnancy, did not accompany them. b)Next day morning, P.W.2 informed P.W.1, the Village Administrative Officer, who immediately went to the spot, verified the fact and then, preferred a complaint Ex.P.1 before the respondent police station. On receipt of Ex.P.1, the complaint, one Natarajan, Inspector of Police, registered the case in Crime No.7 of 2002 under Sections 326 and 302 IPC. Ex.P.16, the F.I.R. was despatched to the Court. He took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.17, the rough sketch. He conducted https://hcservices.ecourts.gov.in/hcservices/ inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.18, the inquest report. The place of occurrence and the dead body were photographed through P.W.15, the photographer. M.O.11 (series) photos were marked. Then, the dead body was sent to the hospital for the purpose of autopsy. c)P.W.13, the Doctor attached to the Government Hospital, Villupuram, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.14, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of asphyxia about 12 to 20 hours prior to autopsy. d)The material objects recovered from the place of occurrence were sent for chemical analysis. Ex.P.23, the Chemical Analyst Report and Ex.P.24, the Serologist's report were received. Further, the hyoid bone was also sent for chemical analysis. Ex.P.27 is the hyoid bone report. Pending investigation, P.W.16, the Inspector of Police arrested A-2 on 23.08.2002 and he came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.34. Pursuant to the same, A-2 produced M.O.3, Gold ear stud and M.O.4, silver anklet, which were recovered under a cover of mahazar. A-2 was subjected to medical examination. e)On transfer of P.W.16, P.W.17, the Inspector of Police took up further investigation and he examined the witnesses. The potency test of A-1 and A-2 were made by the Doctors and necessary certificates were obtained. On completion of the investigation, the Investigating Officer has filed the final report. 4.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 17 witnesses and also relied on 41 exhibits and 11 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charges and awarded punishments as referred to above. Hence these appeals have arisen at the instance of the appellants. 5.Advancing arguments on behalf of the appellants, the learned Senior Counsel would submit that the occurrence has taken place at about 7.00 p.m. on 16.01.2002; that admittedly, the complaint was given only at 9.00 a.m. on 17.01.2002, though even according to the witnesses, the dead body was found in the night https://hcservices.ecourts.gov.in/hcservices/ hours; that there was delay noticed in reporting the matter; that apart from that, P.Ws.2 and 3, who are the mother and sister of the deceased, had not spoken anything about the connection of the accused with the case; that in the instant case, the prosecution had no direct evidence to offer; that the witnesses examined, namely P.Ws.5,6,7 and 8, have turned hostile and hence their evidence could not be used by the prosecution; that what was available for the prosecution was only the arrest, confessional statement of A-2 and the recovery of M.O.3, gold ear stud and M.O.4, silver anklet; that the witnesses examined by the prosecution in this regard are P.Ws.9 and 10, but both these witnesses have turned hostile and under these circumstances, that part of the evidence was not proved and thus, it was not a case where the prosecution was lacking in evidence, but it had no evidence to offer, but the trial court was carried away by the fact that a girl aged 19 years was raped and murdered and hence it has taken an erroneous view, which has got to be set aside and therefore, the appellants are entitled for acquittal in the hands of this court. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that the dead body of one Malar, the daughter of P.W.2, was found in the sugarcane field of one Harikrishnan. Following the inquest made by the Investigating Officer and the preparation of the inquest report, the dead body was subjected to post-mortem by P.W.13, the Doctor, who has categorically opined that the deceased died out of asphyxia. She has also issued Ex.P.14, the post-mortem certificate to that effect. The fact that the deceased died out of the said cause was never disputed by the appellant. Hence it has got to be recorded so. 8.In order to substantiate the charges levelled against the accused/appellants that they murdered the deceased by strangulation following the act of rape on her, the prosecution had no direct evidence to offer. The prosecution marched P.Ws.5,6,7 and 8, but all of them have turned hostile. It can be well stated that so far as A-1 is concerned, the prosecution had no direct or indirect evidence and the prosecution has miserably failed to bring home the guilt of A-1. So far as A-2 is concerned, the only piece of evidence that was available was the alleged arrest, confessional statement made by A-2 on 23.8.2002 voluntarily, which were recorded in the presence of P.Ws.9 and 10 and consequent upon the same, A-2 produced M.O.3, gold ear stud and M.O.4 silver anklet. It is true, P.Ws.2 and 3 have identified both M.Os.3 and 4 that they were worn by the deceased at the time of occurrence. It is pertinent to point out that the occurrence has taken place on 16.01.2002, but the alleged arrest and confessional statement was made on 23.8.2002, i.e. after a long period and pursuant to the same, M.Os.3 and 4 were recovered. https://hcservices.ecourts.gov.in/hcservices/ Hence even the presumption under Section 114-A of the Evidence Act cannot be drawn, since the materials have not been recovered within a reasonable time. Apart from that, the two witnesses examined, namely P.Ws.9 and 10, for the purpose of arrest, confessional statement and the recovery of M.Os.3 and 4, have turned hostile. Under these circumstances, it cannot be stated that the prosecution has proved those facts also. Hence it can be well stated that the prosecution had no evidence to offer either direct or indirect. Thus, the prosecution has miserably failed to bring home the guilt of the accused and therefore, the appellants are entitled for acquittal. 9.Accordingly, the conviction and sentence imposed on the appellants by the trial court are set aside and the appellants are acquitted of the charges levelled against them. The Bail bond executed by A-1 shall stand terminated. The appellant in Criminal Appeal No.454 of 2008, namely second accused 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 appellants shall be refunded to them. Accordingly, these criminal appeals are allowed. Vvk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Judicial Magistrate No.2, Villupuram. 2. Do Thro The Chief Judicial Magistrate, Villupuram. 3. Do Thro The Principal Sessions Judge, Villupuram. 4. The Superintendent, Central Prison, Cuddalore. 5.The Inspector of Police, Kandamangalam, Kandamangalam Police Station. 6.The Additional Public Prosecutor, High Court, Madras. + 1 cc to Mr. L. Mahendran, Advocate SR No. 71525 + 2 ccs to M/s. M. V. Karunakaran, Advocate SR No. 70932 MG(CO)SR/29.12.2008 CRL.A.NOS.454 AND 482 OF 2008 https://hcservices.ecourts.gov.in/hcservices/