IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 06.09.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.333 of 2010 Muthu @ Muthusamy ... Appellant ..Vs.. State by Inspector of Police, Appakoodal Police Station, Erode District. ... Respondent Appeal filed against the judgment dated 4.5.2010 passed by the Additional District and Sessions Court/Fast Track Court No.IV, Bhavani in S.C. No.40 of 2009. For Appellant : Mr. N. Manokaran For Respondent : Mr. V.R. Balasubramanian, Additional Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 4.5.2010 passed by the learned Additional District and Sessions Judge/Fast Track Court No.IV, Bhavani in S.C. No.40 of 2009, whereby the sole accused stood charged, tried for the offences under Sections 302, 379 and 201 of the Indian Penal Code and found guilty for the offences under Sections 302 and 201 of the Indian Penal Code and awarded punishment to undergo Life Imprisonment and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for six months for the offence under Section 302 of the Indian Penal Code and to undergo Life Imprisonment and to pay a fine of Rs.1,000/- in default to undergo Rigirous Imprisonment for six months for the offence under Section 201 of the Indian Penal Code. 2. The short facts necessary for the disposal of the case can be stated thus: https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.1 is a resident of Orichery within the jurisdiction of respondent-police. The deceased Poongodi is his wife. He has two daughters. He was working in a Company at Kumarapalayam. Three years prior to the occurrence, the deceased developed illicit intimacy with the accused. Both of them were warned, but they continue to have illicit relationship. (ii) On 6.12.2007, when he came back from the Company, he was informed by his daughters that their mother went out. Hence, he went to the father-in-law's house, who was examined as P.W.3 and enquired about his wife. He did not know about her. After making search of the deceased, they came to know that a dead body was found in the well. Immediately, they went over there and the dead body was taken out. The dead body was the wife of P.W.1. (iii) P.W.1 immediately proceeded to the respondent-police and gave complaint Ex.P1 and on the strength of the same, a case in Crime No.210 of 2007 was registered for the offence under Section 174 Cr.P.C. and the Express First Information Report Ex.P9 was despatched to the Court. On receipt of copy of First Information Report, P.W.20 Inspector of Police took up the investigation and proceeded to the spot, made an inspection and prepared Observation Mahazar Ex.P2 and rough sketch Ex.P10. (iv) P.W.16 the so called photographer went to the place of occurrence and took photos M.O.8 series and C.D. M.O.9. P.W.20 conducted inquest on the dead body in the presence of witnesses and the inquest report is marked as Ex.P6 and sent the dead body for conducting autopsy. P.W.17 Doctor, who conducted post-mortem on the dead body, issued post-mortem Certificate Ex.P6, where he has opined that the death would have occurred 72 hours prior to the post-mortem and the deceased would appear to have died of asphyxia due to smothering. Thereafter, the investigation was taken up by P.W.21 Inspector of Police. (v) Pending investigation, P.W.13 Village Administrative Officer produced the accused before the Investigating Officer. He deposed in his evidence that when he was in his office, the accused came there and made a confession statement voluntarily and the same was recorded and thereafter he was produced before the Investigating Officer. Thereafter, the accused was arrested and he gave confession statement voluntarily and the same was recorded and the special report is marked as Ex.P12. The admissible portion of the confession statement is marked as Ex.P13. Thereafter, the accused produced M.Os.2 to 5 gold jewels and the same were recovered in the presence of witnesses under the cover of mahazar Ex.P4. The accused was sent for judicial remand. Thereafter, the case was altered to one under Sections, 302, 201 and 379 of the Indian Penal Code. The amended First Information Report Ex.P14 was sent to the Court. https://hcservices.ecourts.gov.in/hcservices/ (vi) During interrogation by the Investigating Officer, it reveals that P.Ws.8 and 9 saw the accused in the company of the deceased just before the occurrence. P.W.21 recorded their statements. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 21 witnesses viz. P.Ws.1 to 21 and relied on 14 documents viz. Ex.P1 to P14 and also relied on M.Os.1 to 9. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused, but one document was marked. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinizing the materials available on record, found the accused guilty under Sections 302 and 201 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer. According to the prosecution, the occurrence had taken place on 6.12.2007 at about 4 p.m. and the accused/appellant caused the death of Poongodi, the wife of P.W.1 and after removing the jewels worn by her, dropped her into the well. In order to substantiate the prosecution case, the prosecution relied on circumstances. 6. According to the learned counsel, extra judicial confession statement alleged to have been given by the accused to P.W.13 Village Administrative Officer was on 16.11.2008 that was after one year. The accused was actually not known to the Village Administrative Officer previously. P.W.13 Village Administrative Officer has categorically admitted that the accused gave confession statement and the same was reduced to writing, but such a confession statement was not produced before the Court that too with the delay of one year. Non production of the confession statement would clearly indicate the fact that such a confession would not have been given at all. That part of evidence should have been rejected. 7. Pointing to the evidence of P.Ws.8 to 10, learned counsel would submit that they were all neighbors to P.W.1. Had they really seen the deceased with the company of the accused, they would have definitely informed the same to P.W.1 or somebody. They have not revealed the same until the arrest of the accused was made after one year. With regard to jewels, the evidence of P.Ws.8 to 10 shows that the jewels are quite new, which is contrary to the https://hcservices.ecourts.gov.in/hcservices/ evidence of P.W.1, who has deposed that the said jewels were not worn by the deceased. Hence, the prosecution has miserably failed to prove the case beyond reasonable doubt. On the contrary, the learned Trial Judge has taken an erroneous view which has got to be set aside. 8. This Court heard the learned Additional Public Prosecutor on the above contentions paid its anxious considerations on the submissions made. 9. It is not in controversy that the dead body of one Poongodi, wife of P.W.1 was taken from a well and following the same, a case was registered under Section 174 of the Criminal Procedure Code and after conducting post-mortem on the dead body, the case was altered to one under Section 302 of the Indian Penal Code. The Doctor, who conducted post-mortem, has issued post-mortem Certificate, where he has opined that the deceased would appear to have died of asphyxia due to smothering. The cause of death as putforth by the prosecution was never disputed by the accused. Hence, the prosecution was successful enough to prove the cause of death due to homicidal violence and the Trial Court was perfectly right in recording so. 10. From the perusal of available evidence, it is quite clear that the prosecution had no direct evidence, but relied on circumstantial evidence. In the case of circumstantial evidence, the Court is mindful of caution to the ruling of the Apex Court and also settled principles of law that in a case, where the prosecution rests on circumstantial evidence, the same must constitute confidence in the mind of the Court that the circumstances, which stood against the accused, would point out the hypothesis that except the accused, no one could have committed the offence. To prove the same, the prosecution mainly relied on extra judicial confession statement given by the accused to P.W.13 Village Administrative Officer. 11. This part of evidence has to be necessarily rejected for two reasons. The occurrence had taken place on the evening hours of 6.12.2007, but, according to P.W.13, the accused appeared before him only on 16.11.2008 and gave confession statement and the accused is not known to him previously. It was highly strange that the accused went to a stranger, who is the Village Administrative Officer and gave a confession statement that too after one year. According to P.W.13, the accused gave confession statement and the same was also reduced in writing. The said confession statement was not placed before the Court and no explanation was forthcoming for not placing the same before the Court. Hence, that part of evidence has to be rejected. https://hcservices.ecourts.gov.in/hcservices/ 12. Insofar as the evidence of P.Ws.8 to 10 are concerned, they are all neighbors to P.W.1. The death of P.W.1's wife should be well within their knowledge. If to be so, had they really seen the accused with the company of the deceased at that time, there was no need for them to keep silent for more than one year. It is pertinent to point out that the statement of these witnesses recorded by the Investigating Officer was only after the arrest of the accused, which would indicate that their statements were prepared only for the purpose of case. 13. Added further that the recovery of M.Os. 2 to 5, they were all found to be new when P.W.1 was confronted at the time of cross-examination, he deposed that those jewels were not actually worn by the deceased. Even assuming the recovery was made, such recovery was not pointing out the nexus of the crime to the accused. Apart from this, the prosecution attributed the illicit intimacy between the deceased and the accused. In the absence of any relevant fact and proof, the prosecution cannot be said to have brought home the guilt of the accused. The prosecution has miserably failed to prove its case beyond reasonable doubt The learned Trial Judge has taken an erroneous view and the same has to be upset and the appellant is entitled for acquittal. 14. Accordingly, the above criminal appeal is allowed, setting aside the judgment dated 4.5.2010 passed by the Additional District and Sessions Court/Fast Track Court No.IV, Bhavani in S.C. No.40 of 2009 and the accused/appellant is acquitted of all the charges levelled against him. The accused/appellant vis. Muthu @ Muthusamy is directed to be set at liberty forthwith unless his custody is required in connection with any other case. ssa. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Judicial Magistrate, Bhavani. 2. The Chief Judicial Magistrate, Erode. https://hcservices.ecourts.gov.in/hcservices/ 3. The Additional District and Sessions Court, Fast Track Court No.IV, Bhavani, Erode District. 4. The Principal District and Sessions Court, Erode. 5. The Superintendent, Central Prison, Coimbatore. 6. The Inspector of Police, Appakoodal Police Station, Erode District. 7. The District Collector, Erode District. 8. The Director General of Police, Madras – 4. 9. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. N. Manokaran, Advocate SR No.66185 RJ(CO) SR/24.9.2010 Crl. A. No.333 of 2010 https://hcservices.ecourts.gov.in/hcservices/