BAIL SLIP --- The Appellant/Accused viz., Chinnadurai was directed to be released on bail by the order of this Court dated 27.1.2003 and made in Crl.M.P.No.349/03 in Crl.A.No.76/2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.01.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.76/2003 Chinnadurai Appellant/Accused Vs State by Inspector of Police Thandrampet Circle Vanapuram Police Station Respondent/Complainant (Crime No.161/2000) Prayer:- This Criminal Appeal is filed against the judgement dated 18.12.2002 passed in SC.No.91/2002 by the learned Additional Sessions Judge Cum Chief Judicial Magistrate, Tiruvannamalai, convicting and sentencing the appellant for the offence under Section 304 (ii) of IPC to undergo seven years of Rigorous Imprisonment. For Appellant : Mr.V.Karthick For Respondent : Mr.Hasan Mohammed Jinnah, APP JUDGEMENT This Criminal Appeal is filed against the judgement dated 18.12.2002 passed in SC.No.91/2002 by the learned Additional Sessions Judge Cum Chief Judicial Magistrate, Tiruvannamalai, convicting and sentencing the appellant for the offence under Section 304 (ii) of IPC to undergo seven years of Rigorous Imprisonment. 2. The case of the Prosecution is as follows:- a. The deceased Kalairasi is the wife of the Appellant/accused. On 15.9.2000 at 10.00 p.m. on the western side fields of their Village namely Kottaiyur Colony, the Appellant noticed his wife in a compromising position with Pw.2 Logu @ Loganathan and having frustrated with the said conduct of his wife, he threw a stone Mo.1 upon her and it missed the aim and https://hcservices.ecourts.gov.in/hcservices/ thereafter, the Appellant trampled upon both sides of her chest and ribs and the Appellant took the body of his wife to his house on his shoulder and put down in front of his house. PW.3 Muneeswaran and one Elumalai, who went to attend the nature's call at that time, saw the Appellant with the body of the deceased upon his shoulders. b. On 16.9.2000, after coming to know about the tragedy, the deceased's younger brother Karthigeyan PW.1 along with his relatives in a tractor came to the said Village and on seeing the symptoms over the body of the deceased and on suspicion, went to the Vanapuram Police Station and lodged a complaint Ex.P1. d. The Head Constable Sowrimuthu PW.7, registered a case in Cr.No.161/2000 under Section 174 of Code of Criminal Procedure and prepared FIR Ex.P2 and forwarded the same to the concerned court and the officials. PW.8 Inspector of Police attached to the Thandrampet Police Station on receipt of the information came to the Vanapuram Police Station and got the copy of the FIR and took up the case for investigation and went to the scene of occurrence and prepared observation mahazar Ex.P3 and a rough sketch Ex.P9 in the presence of PW.4 Gubendiran and one Sivalingam and sent the body of the deceased through the Head Constable-555 to the Government Headquarter's Hospital, Tiruvannamalai with a requisition Ex.P6 for conducting post-moretm and on 17.9.2000 conducted inquest over the body of the deceased at the said Hospital between 8.30 a.m. and 10.30 a.m. in the presence of the Panchayatars and prepared inquest report Ex.P10 and examined PWs.1, 2 and 3 and the second wife of the Appellant and recorded their statements. PW.8 altered the case into one under Section 302 of IPC and sent the express report Ex.P11 to the court concerned. c. PW.5 Doctor Krishnaveni attached to the said Hospital conducted post-mortem over the body of the deceased on 17.9.2000 at about 12.15 hours and after perusing the toxicology report Ex.P7, opined in the post mortem certificate Ex.P8 that the deceased died about 36-42 hours prior to autopsy due to the injuries sustained by her. d. On 19.9.2000 at 10.00 a.m. PW.8 had arrested the accused at Kottaiyur Colony bus stop and recorded his confession statement in the presence of PW.4 and on his confession, seized the granite stone Mo.1 hidden in the bushes in the presence of the same witness under mahazar Ex.P5 and sent him for judicial custody. After the transfer of PW.8, PW.9 Vaithiyalingam after completing investigation, on 28.7.2001 filed a final report against the accused under Section 302 of IPC. 3. The case was taken on file in SC.No.91/2002 by the learned Additional Sessions Judge cum Chief Judicial Magistrate, Tiruvannamalai and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P13 and one material objects Mo.1. https://hcservices.ecourts.gov.in/hcservices/ 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. The Prosecution case is that the deceased was found in a compromising position with PW.2 one Logu @ Loganathan of the same Village by the accused, the husband of the deceased at 10.50 p.m. on 15.9.2000 and the accused on seeing it, threw a stone on the body of the deceased which missed her body and thereafter, he trampled on her chest with his foot which resulted in her death. In the charge laid against the accused, it is specifically stated that PW.2 ran away from the scene on seeing the accused throwing the stone on the deceased indicating that he had not seen the subsequent events. PW.1, the brother of the deceased had come to the Village only after being informed by some one from the Village where the deceased and the accused lived that the deceased had died. Even in his chief examination, he has stated that the deceased and the accused came to their village on 14.9.2000 a day prior to the occurrence and returned to their Village on 15.9.2000 on the date of occurrence at 10.30 a.m. He had received information on 16.9.2000 in the morning. 8. PW.1's evidence does not indicate as to who passed on the information to him about the illicit intimacy of the deceased with PW.2 and about the accused trampling the deceased on seeing her in a compromising position with PW.2. As per the Prosecution, the accused had brought the body of the deceased on his shoulder and left it on the front yard of his house and disappeared. PW.9 the investigating officer admitted in his cross examination that one Radhika who is a resident of the opposite house to the accused's house had seen the body first, but she has not been examined by the investigating officer. As a neighbour she might have noticed if the accused had brought the body and left it on the entrance of his house. But,curiously she has not been examined. PW.1's evidence revealed that he had entertained a doubt even in the afternoon of 16.9.2000 when he saw contusion on the body of his sister that the accused must be the perpetrator of the crime. He also stated that when he was sitting near the body in grief, he had come to know about the entire incident through the villagers. He had lodged the complaint on 16.9.2000 at 7.00 p.m. to Vanapuram Police Station. But, he has not stated anything about the information he received from the Villages that the accused had caused the fatal injuries on the deceased on seeing her in a compromising position with PW.2 https://hcservices.ecourts.gov.in/hcservices/ 9. If he had received any such information or the Villagers had come to know about the cause for the death of the deceased, they would not have kept quiet and PW.1 would have certainly stated those material facts in the complaint given by him. But, in the complaint it is merely stated that he suspected the accused for the unnatural death of the deceased. 10. In such circumstances, whether the testimony of the sole witness namely PW.2 who is alleged to have been found in a compromising position with the deceased could be relied upon is the material question that is placed for consideration. He has stated that on the night on the date of the incident he went to attend the nature's call and the deceased followed him and pleaded with him to talk to her. At that time, the accused came there, pulled her by her hair and kicked her as a result of which, she fell down and then the accused trampled her with his foot. Thereafter, he took her on his shoulders and left the place. 11. At the outset, it is his version that merely on seeing the deceased talking with him the accused attacked the deceased and he would categorically state that there was no other illegal relationship with her. On the contrary, the Prosecution case is that the accused saw them in a compromised position and thus provoked by their illicit act, the accused kicked the deceased and trampled her. PW.2's evidence does not appear to be a reliable one, as he had concealed the true facts before the court. His evidence does not indicate that the accused suspected them even before the date of the incident and that is why even on seeing them talking with each other, the accused started attacking the deceased. The testimony of PW.2 is unbelievable as without being provoked for merely talking to a person no person would indulge in such attack on his wife especially in the absence of evidence to show that PW.2 had illicit intimacy with the deceased. 12. That apart, in his cross examination he has deposed that on seeing the accused assaulting the deceased by pulling her hair, he ran away from the scene and he had not seen anything thereafter. He has at the first instance stated that he did not say about the attack made by the accused on the deceased to the police though he was examined by the police on the next day and stated only before the court, but immediately he retorted and said that he told the police on the next day. But, the evidence of PW.8, the investigating officer indicates that PW.2 was examined only at the time of inquest made over the body i.e. on 17.9.2000 at 8.30 a.m. Had he been examined at the time of inquest and the cause of death was known to the investigating officer, then it would definitely find a place in column 3 and 4 of the inquest report. Whereas it is noted that the deceased was last seen by Sumathi the second wife of the accused and the body of the deceased was seen by one Radhika on the night of 16.9.2000. Therefore, the version of the investigating officer that he examined PW.2 at the time of inquest is falsified by the statement made in the inquest report. https://hcservices.ecourts.gov.in/hcservices/ 13. Now coming to PW.2, his evidence is unworthy of credence considering his deliberate omission with regard to the illicit intimacy he had with PW.2 and the state of affair he had with her on the date of the incident. The delayed statement to the police and his unexplained silence in not disclosing the incident to anyone in the Village even to his family members discredit his testimony and no reliance could be placed on his evidence. 14. Mr.V.Karthick, the learned counsel for the Appellant strenuously contended that the Trial Court brushed aside the material infirmities, contradiction and omissions in the Prosecution case and based on the uncorroborated testimony of the sole unreliable witness convicted the accused, which is clearly unsustainable, warranting interference by this court. He placed reliance on the decisions of the Honourable Supreme Court reported in the cases of Toran Singh Vs. State of MP [2002-SCC-Cri-1377], Kochu Maitheen Kannu Salim Vs. State of Kerala [1998-SCC-Cri-947] and Alil Mollah and another Vs. State of West Bengal [1996-3- Crimes-105-SC] in support of his forceful contention. 15. On the other hand Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor supported the judgement of the court below and submitted that the delayed examination of PW.2 by the investigating officer cannot have any effect on the credibility of the said evidence and the defence cannot gain any advantage therefrom, in the absence of question put to the investigating officer by the defence as to why there was such a delay. 16. The learned Additional Public Prosecutor relied on the decision of the Honourable Supreme Court rendered in the case of Nallam Veera Stayanandam and others Vs. Public Prosecutor, High Court of AP [2005-SCC-Cri-606] in support of his submission. He would submit that the last seen theory is applicable in this case and where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small, the possibility of any person other than the accused being the author of the crime becomes impossible. The learned Additional Public Prosecutor placed reliance on the decision of the Honourable Supreme Court in the case of Bodhraj alias Bodha and others Vs. State of Jammu and Kashmir [2002-8-SCC- 45] in support of his contention. 17. At the outset, except the unreliable testimony of PW.2 there is absolutely no evidence to speak about the deceased lastly seen with the accused to substantiate the argument of last seen theory. In fact, PW.2 is also a person lastly seen with the deceased. PW.2 had suppressed material facts for which there is no explanation from the Prosecution. There is not even a suggestion by the Prosecution to PW.2 to indicate that he was found in a compromising position on the date of the incident. In fact, as already discussed, in the inquest report, PW.2 is not shown as the last person who had seen the deceased before her death despite the https://hcservices.ecourts.gov.in/hcservices/ version made by the investigating officer that he had examined PW.2 at the time of inquest. So, the argument advanced by the learned Additional Public Prosecutor cannot have any force and the citations referred to by the learned Additional Public Prosecutor cannot be applied to the facts of this case. It is to be noted that the investigating officer made no efforts to examine the Villagers to get information with regard to the illicit intimacy between the deceased and PW.2 and there is absolute lack of evidence on this aspect. That apart, when a single and sole eye witness is wholly reliable and suffers from serious infirmities and contradictions, it is not safe to rely upon such evidence to base conviction on the Appellant. In such circumstances, I am of the considered view that the conviction and sentence of the Appellant are unsustainable and liable to be set aside. 18. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the Appellant in SC.No.91/2002 are set aside and the Appellant is acquitted of all the charges leveled against him. It is seen from the records that the Appellant had been enlarged on bail and the bail bond if any executed by the Appellant shall stand terminated and the fine amount if any paid by the Appellant shall be refunded to him. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar Srcm To: 1.The Additional Sessions Judge Cum Chief Judicial Magistrate, Tiruvannamalai 2.-do- Thro The Principal Sessions Judge, Tiruvannamalai. 3. The Superintendent, Central Prison, Vellore. 4. The Public Prosecutor, High Court, Madras 5. The Inspector of Police, Thandrampet Circle, Vanapuram Police Station. 6. The Director General of Police, Mylapore, Chennai-4. 7. The District Collector, Tiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/ 8. The Section Officer, Criminal Section, High Court, Madras. 1 cc to M/s.T.S.Gopalan & Co., Advocate, Sr.No.3561 Judgement in Crl.A.No.76/2003 JRG {CO} TP/5.2.2010. https://hcservices.ecourts.gov.in/hcservices/