IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN Criminal Appeal No.774 of 2008 Pushparaj ..Appellant/Accused Vs. State represented by Inspector of Police, Gurubarapalli Police Station Krishnagiri District (Crime No.140/2003) .. Respondent/Complainant The criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of conviction and sentence passed by the learned Principal Sessions Judge, Krishnagiri, made in S.C.No.77 of 2005, dated 30.7.2008. For Appellant : Mr.V.Manohar For Respondent : Mr.N.R.Elango, APP J U D G M E N T (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Krishnagiri made in S.C.No.77 of 2005 whereby the appellant/accused stood charged, tried and found guilty under section 302 r/w 114 I.P.C. and awarded life imprisonment along with fine of Rs.5000/-, in default, to undergo one year rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal could be stated as follows: (a) The deceased accused/A1/Ashok kumar and the appellant/A2, are the cousin brothers. The deceased Perumal is the brother's son of the said Ashok kumar. In 1983, the deceased Perumal murdered one Hanumanth and his wife Govindammal, the parents of the said Ashok kumar and also the other two brothers of Ashokkumar. On trial, the said Perumal was convicted by the trial Court and awarded capital punishment for 4 counts in S.C.No.82/1994 dated 9.7.1997. Challenging the same, he filed an appeal before this Court. The same was allowed https://hcservices.ecourts.gov.in/hcservices/ and he was acquitted. At the time of the earlier incident when the parents of Ashok kumar were murdered by Perumal, Ashok kumar was only 15 years old but he developed grudge in his mind against the deceased Perumal for murdering his parents and also he was aggrieved by the fact that the said Perumal was set free. Ashok kumar/A1 was waiting for opportunity. On 4.5.2003 at 5.30 p.m. at Rayar Kottai Road when the deceased Perumal was proceeding to his house after his field work along with his wife P.W.1. and his daughters P.Ws.2 to 4 , the present appellant/accused caught hold of the deceased and facilitated the crime, when the accused deceased Ashokkumar attacked him with koduval on the backside upto the mouth angle over the right cheek and caused his death instantaneously. The occurrence was witnessed by P.W.1, 2 to 4 wife and daughters of the deceased respectively. P.W.7 who was on that way, came to know about the occurrence (b) P.W.1 proceeded to the respondent police station and gave a complaint Ex.P1 on 4.5.2003 at 7.00 p.m. to P.W.12 Head Constable, on the strength of which, a case came to be registered in Crime No.140/2003 under sections 342 and 302 I.P.C. The express F.I.R. Ex.P6 was despatched to Court. The copy of the FIR was sent to the Inspector of Police concerned. (c) Vikkaransingh, Inspector of Police, took up investigation. He proceeded to the spot made an inspection and prepared observation mahazar which was marked as Ex.P2 and also drew a rough sketch Ex.P12. He also recovered M.Os from the place of occurrence, viz., M.O.3 blood stained earth and M.O.4 sample earth and M.O.1 Koduval under a cover of mahazar Ex.P3. However, the photographs were taken through P.W.8-photographer and photographs and negatives were marked as M.O.2 series. The investigating officer conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P13 inquest report. Following the inquest made , the dead body was subjected to post mortem. (d) P.W.11 doctor attached to the Government Hospital conducted autopsy on the dead body of the deceased Perumal on 5.5.2003 at 9.00 a.m. The doctor has given in opinion in E.P5 post mortem certificate that the deceased would appear to have died 12 to 24 hours prior to autopsy due to shock and haemorrhage, involving in vital organs. (e) On 6.5.2003 at 12 noon, the investigating officer arrested the accused. The confession statement was recorded and the accused were sent for judicial remand. All the material objects were subjected to chemical analysis which resulted in two reports, viz.,chemical report Ex.P9 and serologist report Ex.P.10. On completion of the investigation, the investigating officer filed a final report. Since the said Virransingh was no more, P.W.14 Inspector was examined who knew the handwriting and signature of Vikkransingh. When charge sheet was laid A1 Ashok Kumar was shown to have committed offence under section 302 IPC and the present appellant /A2 was shown to have committed offence under section 302 r/w 109 I.P.C. for abetment of murder but pending trial when the charge against A1 was abated since A1 died on 5.6.2004, the appellant https://hcservices.ecourts.gov.in/hcservices/ herein was ranked as the only accused before the trial Court. (d) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and relied on 13 exhibits and 8 material objections. After completion of the 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. The Court heard the arguments advanced on either side and took a view that the prosecution has proved its case beyond reasonable doubt and found the appellant guilty under section 302 r/w 114 IPC and awarded life imprisonment along with fine of Rs.5000/- in default to undergo one year rigorous imprisonment. Hence, this appeal at the instance of the appellant. 3. Advancing the argument on behalf of the appellant, learned counsel would submit that the prosecution has miserably failed to prove its case . Even as per the case of the prosecution, at the time of occurrence on 4.5.2003, in view of the grudge entertained by Asokkumar who died pending the proceedings before the Magistrate Court, it was he who attacked the deceased Perumal with Koduval on his neck. The prosecution story was that the crime was facilitated by the accused/appellant by catching hold of the deceased. The learned counsel took the Court to the evidence of P.W.1 and also the evidence of post mortem doctor and his post mortem certificate. Learned counsel pointing to the evidence of P.W.1 would submit that it was the accused who came actually behind the deceased and caught hold of the deceased from backside so that he could not move about. The learned counsel pointing to the post mortem certificate wherein the first external injury was stated as "Deep lacerated cut injury about 28 cm. X 5 cm. X 4 cm. - 7 cm. Extending 2 cm. lateral to mouth angle over the right cheek, over the right lateral neck, nape of neck to the left side neck. Cutting underlying muscle, ligament. Neurovascular bundle with jugular vein, Carotid vessels bone, C4 vertebra" and would submit that in the instant case, it was injury from cheek upto the backside of the neck. If the cut injury was given by koduval standing in front or by the side of the deceased, certainly injury would have been caused to the present accused also because he was actually hold him from backside. When a person is catching hold of other person from backside such injury could not have been caused on the neck, that too, till the nape side . The case of the prosecution that appellant herein caught hold of the deceased at that time, when A1 cut the deceased was thoroughly impossible and it could not have been caused. The prosecution has miserably failed to prove that fact. Hence, the appellant is entitled for acquittal on that ground. The learned counsel would further add that there was discrepancy in the evidence of P.Ws.1 to 4. In so far as the eye witnesses are concerned, they could not have seen the occurrence at all. The medical opinion canvassed by the prosecution did not support the prosecution case. Though the investigator claim that the confession statement was recorded from the accused nothing was recovered from him. The confession statement alleged to have given by present accused/appellant herein was nothing but false. Thus, the prosecution has miserably failed to proved its case beyond and the https://hcservices.ecourts.gov.in/hcservices/ appellant is entitled for acquittal in the hand of this court. 4. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 5. The specific charge that was levelled against the appellant herein was that he facilitated the crime when the deceased accused one Ashokkumar attached the deceased Perumal at 5.30 p.m. On 4.5.2003. P.W.1 is the wife and P.Ws. 2 to 4 are the daughters of the deceased. They were examined to speak about the occurrence. It is the specific case of the prosecution that when the deceased accused cut Perumal with koduval it was this appellant/accused who caught hold of the deceased Perumal to facilitate the crime. So far this relevant fact is concerned, the prosecution must prove the same beyond reasonable doubt. The Court is afraid to convict the present accused/appellant on accepting this part of the case of the prosecution that the appellant/accused caught hold of the deceased and thereby facilitated the crime of murder when the deceased accused cut him with koduval, on the face of evidence of P.W.1 and coupled with the medical opinion canvassed. According to P.W.1, he had candidly admitted that the appellant here was catching hold of the deceased by standing behind the deceased when the deceased accused attacked the deceased Perumal with koduval on the neck. The first external injury that was found on the deceased was actually described in the post mortem certificate Ex.P.5 as follows. "Deep lacerated cut injury about 28 cm. X 5 cm. X 4 cm. - 7 cm. Extending 2 cm. lateral to mouth angle over the right cheek, over the right lateral neck, nape of neck to the left side neck. Cutting underlying muscle, ligament. Neurovascular bundle with jugular vein, Carotid vessels bone, C4 vertebra." From the very reading of the above injury in the post mortem certificate, it would be quite clear that the injury what was found from the cheek also extends to the backside of the neck to the nape bone. Under such circumstances, when such injury is found to be at the back, a person standing in front cannot cause such an injury which was extending to the nape side of the head when the other person is standing behind catching hold of the deceased. The appellant did not sustained any injury at all. 6. Under such circumstances, when the matter is looked into, such factual position putforth by the prosecution, cannot be accepted. Causing such injury as found in the post mortem certificate by the deceased accused, whether standing in front or on the side of the deceased, could not have happened at all when A2/ appellant was holding him from backside. The alleged fact that the appellant/accused caught hold of the deceased and facilitated the crime, cannot be accepted. Under such circumstances, it cast reasonable doubt whether the appellant would have facilitated the crime and the prosecution must explain the same but they have not done so. Hence, the Court is of the considered opinion that the https://hcservices.ecourts.gov.in/hcservices/ prosecution has not proved the case beyond reasonable doubt and hence the benefit of doubt should go to the appellant and therefore, he is entitled to be acquitted. The lower court, without considering all these aspects, has erroneously found the appellant guilty and hence, the judgment of the lower court has got to be made undone only by upsetting the same. 7. In the result, 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. The bail bond, if any executed by the appellant, shall stand terminated and the fine amount if any paid by him is ordered to be refunded to him. Accordingly, this criminal appeal is allowed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The Principal Sessions Judge, Krishnagiri. 2. The Judicial Magistrate, Krishnagiri. 3. -do- Thro' The Chief Judicial Magistrate, Krishnagiri. 4. The Inspector of Police, Gurubarapalli Police Station Krishnagiri District . 5. The Superintendent, Central Prison, Vellore. 6. The District Collector, Krishnagiri 7. The Director General of Police, Chennai-4. 8.The Public Prosecutor, High Court,Madras. +1 cc to Mr.V.Manohar, Advocate, SR.No.34103 Crl.A.No.774 of 2008 KA {CO} TP/20.8.2009. https://hcservices.ecourts.gov.in/hcservices/