IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 18.08.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.155 of 2010 A. Kuppan ... Appellant/Accused ..Vs.. State of Tamil Nadu, rep. by the Inspector of Police, Bargur Police Station, Krishnagiri District. ... Respondent/Complainant (in Cr.No.121/04) Appeal filed against the judgment dated 10.07.2009 passed by the learned Additional Sessions Judge, Krishnagiri in S.C. No.239 of 2007. For Appellant : Mr. G. Natarajan For Respondent : Mr. V.R. Balasubramanian Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 10.07.2009 passed by the learned Additional Sessions Judge, Krishnagiri in S.C. No.239 of 2007, whereby the sole accused stood charged, tried and found guilty for the offence under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for six months. 2. The short facts necessary for the disposal of the case can be stated thus: https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.8 is the owner of mango thope where the incident of murder had taken place. During the relevant time, the accused/appellant and the deceased, who had illicit intimacy, were employed under P.W.8 and were residing in the hut situated on the south side of the mango grove. P.Ws.2 and 3 were employed in the adjacent mango grove. The deceased was insisting that the accused should have kept her permanently. There was often quarrel, which was known not only to P.Ws.2 and 3, but also to all the neighbors. (ii) During the night hours of 29.3.2004, when P.Ws.2 and 3 being the Watchmen, were in their respective huts situated in the adjacent mango groves, they heard a distressing cry. Immediately, they rushed to the spot and found the appellant beating the deceased on different parts of the body with mango stick. When they attempted to go to the rescue, both of them were threatened. They were under the grip of fear and went to their respective huts and slept there. (iii) Next day morning, P.W.1 was informed by P.W.8 that he had seen the body of the deceased. Then immediately P.W.1 went to the spot and found the dead body and proceeded to the respondent police and gave a complaint Ex.P1 to P.W.15, Sub Inspector of Police, where on the strength of Ex.P1 complaint, a case came to be registered in Crime No.121 of 2004 for the offence under Section 302 of the Indian Penal Code. Express First Information Report Ex.P18 was despatched to the Court. (iv) P.W.16 Inspector of Police took up investigation, went to the spot and prepared Observation Mahazar Ex.P2 and also rough sketch Ex.P19. He conducted inquest on the dead body in the presence of Panchayatars and prepared inquest report Ex.P20. He recovered blood stained sample earth M.O.1 and ordinary earth sample M.O.2 from the place of occurrence. The material objects were sent for chemical analysis. Ex.P12 is the viscera report, Ex.P16 and 17 are serological reports. (v) Thereafter, the dead body was sent for post-mortem through P.W.11 Head Constable. P.W.12 Doctor attached to Government Hospital, Krishnagiri conducted post-mortem on the dead body and issued post-mortem Certificate Ex.P8 where he has noted the following injuries:- " EXTERNAL INJURIES:- (1) Contusion 5 x 5 cms over the left neck below the jaw. (2) Contusion 5 x 5 cms front of upper neck. https://hcservices.ecourts.gov.in/hcservices/ (3) Contusion 5 x 3 cms right chest. (4) Multiple small contusions back of left chest. (5) Contusion 3 x 3 cms left cheek. (6) Depressed root of nose with contusion of whole of nose. (7) Lacerated injury 1 x 1 cms. eight elbow joint. OPINION: Cause of death could be due to Asphyxia caused by smothering." (vi) On completion of investigation, final report is filed against the absconding accused for the offence under Section 302 of the Indian Penal Code before the learned Judicial Magistrate, Krishnagiri. After filing of the charge sheet, the accused was arrested on 4.8.2007, pursuant to which, he gave confession statement voluntarily and the same was recorded in the presence of witnesses and the admissible portion of the same is marked as Ex.P5. Thereafter, the accused produced M.O.3 mango stick, weapon of crime and the same was recovered under the cover of mahazar Ex.P6 and the accused was sent for judicial remand. 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 17 witnesses viz. P.Ws.1 to 17 and relied on 24 documents viz. Ex.P1 to P24 and also relied on M.Os.1 to 5. 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. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinising the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded the punishment 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 miserably failed to prove its case beyond reasonable doubt. Though the occurrence had taken place during night hours, P.Ws.2 and 3 deposed that they have seen the occurrence. According to them, when they were in the next mango grove, they https://hcservices.ecourts.gov.in/hcservices/ heard a distressing cry. When they went to the spot, they found the accused/appellant was attacking the deceased with mango stick, which is quite unnatural. They have not at all seen the occurrence. At the time of occurrence, it was utter darkness and no light was available. Both came forward to state that with the help of chimney light, they have seen the occurrence, which cannot be accepted. 6. Learned counsel added further that the ocular testimony put forth by the prosecution through its witnesses P.Ws.2 and 3 is thoroughly contrary to the medical evidence canvassed through P.W12 Doctor. According to P.W.12 Doctor, the death was caused due to asphyxia by smothering. Neither P.W.2 nor P.W.3 has spoken to the said fact and they have not even whisper that there was either strangulation or smothering and thus the medical opinion was contrary to the ocular testimony. 7. Learned counsel added further that the evidence of P.W.4 as if there was a extra judicial confession made to him by the accused and he had seen the accused running from the place of occurrence cannot be believed for the reason that the statement of P.W.4 should have reached the Court along with the charge sheet, but the same was not done. 8. Learned counsel added further that the prosecution relied on the so called confession statement made by the accused on his arrest. It is pertinent to point out that the arrest was made on 4.8.2007 but the charge sheet was made earlier to the arrest i.e. 2 1/2 years prior to the occurrence, which cannot have any sequence. Under such circumstances, the prosecution has miserably failed to proved its case beyond reasonable doubt and the accused has got to be acquitted. 9. This Court heard the learned Additional Public Prosecutor on the above contentions. 10. This Court paid its anxious considerations on the submissions made by either side. It is not in controversy that the dead body of one Kannammal was found in the field of P.W.8. It is also not in controversy that pursuant to the registration of a case under Section 302 of the Indian Penal Code, the investigation was taken up by P.W.16 Inspector of Police, who inspected the place of occurrence and prepared Observation Mahazar and rough sketch and thereafter, he prepared inquest report on the dead body and thereafter, sent the dead body for post-mortem through P.W.11 Head Constable for conducting post-mortem. P.W.12 Doctor, who conducted post-mortem on the dead body, issued post-mortem Certificate Ex.P8, where he has opined that the death was caused due to asphyxia by smothering. Thus, it would be quite clear that the deceased died due to homicidal violence stood proved. https://hcservices.ecourts.gov.in/hcservices/ 11. The case of the prosecution as could be seen from the material is that at the time when the accused and the deceased had developed intimacy, the deceased was pressurizing him that she should be kept as concubine for which course, he was not amenable and the accused attacked her with mango stick and caused her death. In order to prove the charge levelled against the accused, the prosecution mainly rested its case on the evidence of P.Ws.2 and 3. Admittedly, P.Ws.2 and 3 are the Watchmen in the mango field, adjacent to the place of occurrence where P.W.1 was also a Watchman. 12. P.Ws.2 and 3 gave evidence that on the night of 29.3.2004, when they were sleeping, they heard a distressing cry. Immediately, they rushed to the mango field. Admittedly, it was utter dark. P.Ws.2 and 3 would submit that they took a lantern and went to mango field to witness the occurrence. Both the witnesses have deposed that at the time when they witnessed the occurrence, the accused was actually attacking the deceased with mango stick on different parts of the body, neither strangulation nor smothering . The medical opinion canvassed through Doctor P.W.12 was that the death was caused due to asphyxia by smothering. Thus, the medical opinion canvassed and placed before the Trial Court would clearly indicate that P.Ws.2 and 3 would not have seen the occurrence at all. 13. The added circumstance is that the alleged evidence of P.Ws.2 and 3 is claimed to have been recorded by the Investigating Officer on 1.4.2004, but the same has reached the Court along with the charge sheet on 26.8.2004. If really P.Ws.2 and 3 had witnessed such occurrence, they would have immediately informed the same either to Village Administrative Officer or atleast the owner of the land, but not done so. All would clearly indicate the fact that P.Ws.2 and 3 would not have seen the occurrence. Barring their evidence, the prosecution relied on the evidence of P.W.4, the extra judicial confession alleged to have been given by the accused to him, which was unnatural. 14. Added further, the accused was actually arrested after three years from the date of occurrence, that too after filing of the charge sheet. The alleged extra judicial confession or recovery of M.O.3 mango stick, all could not be put to use as a piece of evidence. Thus, there is nothing to indicate that the prosecution has brought home the nexus of the crime to the accused. The Trial Court has erroneously convicted the accused. 15. For the reasons stated above, the appeal is allowed and the judgment dated 10.07.2009 passed by the learned Additional Sessions Judge, Krishnagiri in S.C. No.239 of 2007 is set aside. The appellant viz. A. Kuppan is directed to be set at liberty https://hcservices.ecourts.gov.in/hcservices/ forthwith unless his presence is required in connection with any other case. Fine amount, if any, paid shall be refunded to him. ssa. Sd/- Asst. Registrar 27.8.2010 "*Corrected Order" Sd/- Sub Asst Registrar 13.9.2010 //True Copy// Sub Asst. Registrar To 1. The Judicial Magistrate, Krishnagiri 2. Do Through the Chief Judicial Magistrate, Krishnangiri. 3. The Additional Sessions Judge, Krishnagiri. 4. The Principal Sessions Judge, Krishnagiri. *5. The Superintendent, To be substituted to the Central Prison, order already despatched Vellore. on 7.9.2010 6. The District Collector, Krishnagiri. 7. The Director General of Police, Madras – 4. 8. The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 9. The Inspector of Police, Bargur Police Station, Krishnagiri District. + 1 cc to Mr. G. Natarajan, Advocate No.61087 NG(CO) SR/30.8.2010 SR/13.9.2010 Crl. A. No.155 of 2010 https://hcservices.ecourts.gov.in/hcservices/