IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.462 of 2009 Mathi ..Appellant / Accused Vs. State by: Inspector of Police, Kottucherry Police Station, Karaikal (Cr.No.93 of 2007) ..Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge, Puducherry at Karaikal made in S.C.No.27 of 2008 dated 31.3.2009. For Appellant : Mr.K.Ethirajalu For Respondent : Mr.T.Murugesan,Senior Public Prosecutor (Pondicherry) J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional Sessions Division, Pondicherry in S.C.No.27 of 2008 whereby the sole accused/appellant stood charged, tried and found guilty as per the charge of murder and awarded life imprisonment along with fine. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the wife of the accused through whom she begotten a son and three daughters. The deceased is the first son. The accused got married with the sister of P.W.1 through whom also he begotten a son and three daughters. The accused did not maintain P.W.1 and her children. The marriage of the deceased Rajesh, son of P.W.1 was arranged. Since the accused did not taken any steps in that regard, there was often quarrel between the deceased Rajesh and the accused. On earlier occasion, when there was such a quarrel, the deceased assaulted his father/accused. Hence, the accused gave a complaint to https://hcservices.ecourts.gov.in/hcservices/ the Police Station. The deceased Rajesh was arrested and was sent for judicial remand. Thereafter, he was released on bail. P.W.1 sent her son, deceased Rajesh to stay in her elder sister's house and he was staying there. On that day, the deceased went to his house to take family photo for the purpose of Family Welfare Scheme. At that time, there was wordy quarrel between the deceased and the accused. P.W.1 compromised them. The accused told P.W.1 that her son will not be alive to do her last rites after her death. Thereafter, the deceased Rajesh went to bed in the southern portion of the house near the garden. At about 11.00 p.m., when P.W.1 woke up from bed, she saw the accused hiding the wooden log and going away. The next day at 5.00 a.m. when P.W.1 went to wake up her son, she saw him dead with injuries on his head, face and ear. Immediately, she P.W.2 and others were informed about the same. (b) P.W.11, Sub Inspector of Police of the respondent Police Station, on receipt of a telephonic message went to the spot along with the Head Constable. There P.W.1 gave a complaint Ex.P1. He came back to the Police Station and registered a case in Crime No.93/2007 under section 302 IPC. ExP.17, FIR was dispatched to Court. (c) P.W.13 Inspector of that Circle took up investigation. He proceeded to the spot, made an inspection and prepared the Observation Mahazar Ex.P.15 and drew a rough sketch Ex.P16. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.19 inquest report. Thereafter, the dead body was subjected to post mortem. (d) P.W.4, doctor attached to the Government Hospital, conducted autopsy on the dead body of the deceased Rajesh and issued Ex.P.5 post mortem certificate wherein he has opinion that the death is due to intracranial haemorrhage as a result of head injury. (e) Pending investigation, the accused was arrested. He came forward to give confessional statement. The same was recorded in the presence of witnesses and the admissible part of the same was marked as Ex.P.9. Pursuant to the confessional statement given by the accused, he produced M.O.4 wooden log and the same was recovered under a cover of mahazar. All the material objects recovered from the place of occurrence, from the dead body of the deceased and M.O.4 wood log recovered from the accused were subjected to chemical analysis and Ex.P.6 chemical report was received and produced before the Court. On completion of the investigation, the investigating officer filed a final report. (f) 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 13 witnesses and relied on 28 exhibits and 15 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under https://hcservices.ecourts.gov.in/hcservices/ section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. No defence witnesses were examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty of murder and awarded life imprisonment along with fine. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellant, the learned counsel would submit, in the instant case, the prosecution had no direct evidence to offer. According to the learned counsel, it can be stated that the prosecution had no circumstantial evidence either directly or indirectly. Even as per P.W.1, there was quarrel on the preceding night of occurrence, i.e., on 19.7.2007 at 9.00 p.m., and it was compromised by P.W.1 and thereafter, all of them went to bed. The accused was actually sleeping on the southern side of the house. On the next day morning, P.W.1 went over there and found her son dead. Apart from that, it cannot be inferred that the accused has caused the death of his son. According to the investigator, M.O.4 wooden log was recovered from the accused, following the confessional statement made by him. The same was subjected to analysis but the blood group was not found tallying. Hence, the scientific evidence was not in favour of the prosecution case. The prosecution had no evidence to offer Under such circumstances, the trial court has taken an erroneous view. Hence, the appellant is entitled for acquittal in the hands of this. 4. The Court heard the learned Senior Public Prosecutor, Pondicherry, on the above contention and paid its anxious consideration on the submissions made. 5. It is not in controversy that one Rajesh son of P.W.1 was found dead on 20.7.2007. Following the inquest made by the investigating officer, the dead body was subjected to post mortem. P.W.4, doctor has conducted autopsy and gave his opinion that the death is due to intracranial haemorrhage as a result of head injury. The cause of death as putforth by the prosecution was never disputed by the appellant before the trial Court. Hence, the Sessions Judge has rightly recorded so. 6. In order to substantiate that it was accused who attacked the deceased with wooden log and caused his death, the prosecution rests its case on the circumstantial evidence. After fully scrutinising the materials available, the Court is afraid whether it can sustain conviction as recorded by the trial Judge. In the instant case, even as per the evidence of P.Ws.1 and 2, there was quarrel between the accused and the deceased on the preceding night. Thereafter, it was amicable compromised by P.W.1 and all of them went to bed. The next day morning, P.W.1 saw her son dead. Except these circumstances, the prosecution had no other circumstances to offer. Even assuming that there was quarrel between the son/deceased and the https://hcservices.ecourts.gov.in/hcservices/ father/accused, the previous night, it was stated by P.W.1 that she amicably solved the dispute and all of them peacefully went to bed. There was a quarrel preceding the date of occurrence, cannot be a circumstance incriminating as against the accused. Added circumstance is the recovery of M.O.4 wooden log on the confession alleged to have been made by the accused to the Investigator. It is well settled principle of law, mainly on the recovery of the weapon of crime, the conviction cannot be sustain. In the instant case, what was recovered was M.O.4 wooden log but the blood group found therein was not tallying. Therefore, the scientific evidence was not useful to the prosecution case. Hence, the two circumstances relied on by the prosecution are not worth enough to point the guilty of the accused. Under such circumstances, the accused/appellant is entitled for acquittal. 7. Accordingly, the appeal is allowed. The judgment of conviction and sentence imposed on the appellant/accused by the learned Additional Sessions Judge, Pudicherry at Karaikal made in S.C.No.27 of 2008 is set aside and he is acquitted of the charge. The appellant/accused is directed to be set at liberty forthwith, unless he is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. THE ADDITIONAL SESSIONS JUDGE PUDUCHERRY AT KARAIKAL 2. -DO-THRO THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,PUDUCHERRY 3. THE JUDICIAL MAGISTRATE -II KARAIKAL 4. -DO-THRO THE CHIEF JUDICIAL MAGISTRATE PUDUCHERRY 5. THE INSPECTOR OF POLCIE KOTTUCHERRY POLICE STATION KARAIKAL https://hcservices.ecourts.gov.in/hcservices/ 6. THE OFFICER IN CHARGE OF PRISON SUB JAIL KARAIKAL U.T OF PUDUCHERRY 7. THE INSPECTOR GENERAL OF POLICE, PUDUCHERRY 8. THE DISTRICT COLLECTOR PUDUCHERRY 9. THE PUBLIC PROSECUTOR(PUDUCHERRY) HIGH COURT,CHENNAI, S.R.No.59932 1 cc To Mr.K.Ethirajulu, Advocate, SR.59888 CRL. APPEAL No.462 of 2009 CKN(CO) sra 20.11.2009 https://hcservices.ecourts.gov.in/hcservices/