BAIL SLIP The Appellant/Accused No.2, Sakthivel was already released on bail in and by order of this Court dated.22.10.07 in Crl.M.P.No.1 of 2007 in Crl.A.No.820 of 2007 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.820 OF 2007 Sakthivel .. Appellant/Accused No.2 Vs. State:through Inspector of Police, Keel Pennathur Police Station, Tiruvannamalai District (Crime No.144 of 1999) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the conviction and sentence imposed in S.C.No.39 of 2006 dated 21.8.2007 on the file of District and Sessions Judge, Tiruvannamalai. For Appellant : Mr.S.Rajagopalan For Respondent : Mr.N.R.ELANGO, Additional Public Prosecutor JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the District and Sessions Judge, Tiruvannamalai made in S.C.NO.39 of 2006 whereby the appellant herein was ranked as A2, stood charged along with two other accused who are shown as A1 and A3 and on trial A1 was found guilty under Section 302 IPC and appellant/A2 was found guilty under Section 302 read with 34 IPC and sentencng them to undergo life imprisonment and to pay a fine of Rs.20,000/- in default to undergo three years R.I.The trial court made an order of acquittal for A3. https://hcservices.ecourts.gov.in/hcservices/ 2. The short facts necessary for the disposal of this appeal can be stated as follows: a) PW2 is a native of Pallikondapattu Village. The deceaded Vimala, aged 13 years and studying 7th standard was the daughter of PW2. PW1 was the Village Administrative officer of Chinna Kankeyanoor during the relevant time. PW4 to 6 were the residents of the same place. On the date of occurrence i.e.on 23.6.1999 at about 6 a.m., the said Vimala was proceeding to the field taking two Bulls. PW2 who was standing in the nearby tea stall informed her to go early and that he will follow little later. PW4 was actually boiling rice in front of her house. At that time, first she found Vimala proceeding towards the field with two Bulls and within a short span of time, all the three accused proceeded in a cycle. When the victim was crossing the accused persons, A1 told her that she can better be seated on his lap. She scolded the first accused and further threatened that she would inform the same to her father immediately. On hearing this, A1 told other accused that she must be immediately prevented from telling her father, if not, it woud be brought to the notice of the villagers and hence we should finish off her. Therefter she took the bulls and tied under the tree and she was standing there. All the accused went near the said Vimala and the first accused parked the cycle nearby the tree and when the second accused took the nylon rope, which is marked as MO1, from the cycle, the first accused caught hold of her, and the victim immediately ran towards the water canal. All the accused chased her. The first accused caught hold of her tuft and dashed her head on the stones. Not satisfied with the same, the first accused took the stone and dashed on the backside of her head continuously. At that time, the third accused caught hold of her legs and the second accused also strangulated her neck with nylon rope. Vimala died instantaneously and all the accused left the place of occurrence b) While PW3 who was proceeding to his land found the dead body of Vimala and informed to PW1, the Village Administrative Officer, who in turn proceeded to the spot and after verifying the fact, he went to the Keelpennathur Polie Station and gave a complaint Ex.P.1 to PW10, the Sub Inspector of Police who on the strength of which registered a case in Crime No.144 of 1999 under Section 302 IPC. Express FIR Ex.P.10 was despatched to Court. c) PW10 took up the investigtion, proceeded to the spot, prepared Observation Mahazar Ex.P.2 and also sketch Ex.P11 and he also recovered pair of chappel from the scene of occurrence and prepared Mahazar Ex.P.3 and then he conducted inquest on the dead body and the inquest report is marked as Ex.P.12.The body was sent for postmortem. https://hcservices.ecourts.gov.in/hcservices/ d) P.W.8, Doctor attached to the Government Hospital, Tiruvannamalai, on receipt of the requisition which is marked as Ex.P.7 conducted post-mortem on the body of the deceased and issued Ex.P.8.the post-mortem certificate wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained on the head. e) Pending investigation, P.W.10 arrested the accused 2 and 3 and the second accused/apellant herein has come forward to give a confessional statement voluntarily, which was recorded in the presence of the witnesses. The admissible portion of confession statement of the second accused was marked as Ex.P.5 . Pursuant to the confession statement, the second accused produced M.O.6 Nylon Rope, which was recovered under a cover of Mahazar Ex.P.6.Then the accused were sent for judicial remand. All the witnessses were examined. On requisition from the investigator, the Judicial magistrate concerned sent the material object for chemical analysis to the Forensic Science Department, which resulted in Ex.P.14, the chemical examiner's report On completion of the investigation, the investigator 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 10 witnesses and also relied on 12 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. The accused flatly denied the same as false. The first accused himself has examined as DW1. 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 1 and 2 guilty and awarded punishment as referred to above and passed an order of acquittal of A3. Hence this appeal has arisen at the instance of the second accused/appellant herein. 4. Learned counsel for the petitioner would submit that the gist of the case of the prosecution was that when a 13 year old Vimala, daughter of PW.2, was proceeding to the field, A1 to A3 went in a cycle and the first accused called her that she can also be seated in his lap. Then, she immediately got provoked, irritated and scolded him and threatened that she would inform her father. Then the accused persons planned to finish-off her and in execution of the same, A1 dashed the stones on her head and A2 strangulated with nylon rope and A3 facilitated the crime by caught hold of her. 5. In order to substantiate the above charges, the prosecution had no direct evidence to offer. The prosecution relied on the evidence of Pws.4 and 5 in order to speak the last seen theory. But, both the witnesses have turned hostile. The prosecution https://hcservices.ecourts.gov.in/hcservices/ had also relied on the the medical evidence before the trial Court. The medical opinion would clearly indicate that the death was caused only because of the dashing of the stones and the lower court not believed the evidence put forth by the prosecution insofar as A3 was concerned. 6. Learned counsel would further add that insofar as A2 was concerned, there was no evidence available. The prosecution relied on the medical evidence and also recovery of M.O.6, nylon rope, pursuant to the confession of the second accused. The alleged confession was given long after the occurrence and the evidence adduced by the prosecution for the alleged confession, arrest and recovery, remain shaky. Apart from this, there was no evidence to speak about the involvement of A2 in the crime and in the face of the evidence of DW1, the first accused, it was he alone committed the offence and the trial Court should have acquitted A2. Insofar as A2 was concerned, there was no evidence available to implicate him in the offence. The evidence of PW4 makes it clear that she has seen A2 and A3 coming in different cycles. Under such circumstances, the prosecution had not only lacked in evidence and the available evidence is contradictory. Under such circumstances, the trial Court should have acquitted the appellant/second accused and hence the appellant is before this Court. 7. Heard the learned Additional Public prosecutor on the above contentions and this Court paid its anxious consideration. 8. It is not in controversy that one Vimala, a girl aged 13 years, daughter of PW2 was done to death in an incident that took place on 23.06.1999 at 6.00 a.m. The PW.8, doctor was examined to prove the fact that she died of homicidal violence through whom, the postmortem certificate was produced. It is not in dispute that she died of homicidal violence and hence it can be recorded so. 9. In order to prove the charges levelled against the accused, the prosecution offered two evidences. The prosecution had no direct evidence to offer, but it relied on circumstantial evidence. The main circumstances are three in number. Firstly, the last seen theory, second is the medical evidence and the third is recovery of M.O.6, Nylon rope. 10. The trial Court was not ready to believe the prosecution version insofar as A3 was concerned. In so far as A1 was concerned, he was examined as DW1, who has categorically deposed that at the time of occurrence, he was proceeding on his way and at that time, the said Vimala was throwing stones, which fell on him and he also threw stone on her. She sustained injury in that process. She threatened that she would inform her father. Hence he dashed stones on her head and he left the place. https://hcservices.ecourts.gov.in/hcservices/ 11.It would be quite clear from the medical opinion that due to the injuries sustained by her on the backside of the head, is the reason for her death. At the time of examining the witness PW4, the prosecution had sufficient material to hold A1 guilty, based on the evidence of PW1 coupled with the medical evidence placed before the trial Court. 12. Insofar as A2 was concerned, even the witnesses examined in that regard as last seen are Pws.4 and 5, who have turned hostile. PW4 had categorically deposed that she found A2 and A3 alone going through the passage in separte cycles. According to the prosecution, all the three accused came in single cycle. PW4 could not have seen the accused at all. Added further, as rightly pointed out by the learned counsel for the appellant, in a case like this, where there is no proof to indicate the involvement of A2 in any manner, the mere recovery of Nylon rope by itself cannot be taken as a factor to sustain the conviction. Thus, it can be well stated that the prosecution had miserably failed to prove the guilt of the accused and thus the judgment of the trial Court in this regard is got to be set aside and accordingly set aside. 13. In the result, the criminal appeal is allowed setting aside the judgment of conviction and sentence of the appellant herein by the court below. The appellant/second accused is acquitted of the charge under Sections 302 read with 34 IPC. Bail bond, if any, executed by the appellant/accused shall stand cancelled. The fine amount, if paid, shall be refunded to him. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar VJY To 1. The District and Sessions Judge, Tiruvannamalai. 2. The Judicial Magistrate No.II, Tiruvannamalai. 3. -do- Thro' The Chief Judicial Magistrate,Tiruvannamalai. 4. The Director General of Police, Chennai. 5. The District Collector, Tiruvannamalai. 6. The Superintendent, Central Prison,Vellore. https://hcservices.ecourts.gov.in/hcservices/ 7. The Inspector of Police, Keel Pennathur Police Station, Tiruvannamalai. 8. The Additional Public Prosecutor, High Court, Madras. + 1 cc to Mr.K.S.Rajagopalan,Advocate,SR.29213 CRL.A.No.820 of 2007 CKN(CO) EM/17.7.09 https://hcservices.ecourts.gov.in/hcservices/