B A I L S L I P The Appellant/Accused namely Pannirselvam @ Pannir was directed to be release on bail by the order of this Court dated 22.2.2008 in Crl.MP.No.1 of 2008 in Crl. Appl.100/08. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.100 of 2008 Pannirselvam @ Pannir .. Appellant Vs. State by Inspector of Police, Nellikuppam Police Station, Cuddalore. Crime No.34 of 2005 .. Respondent This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned Principal Sessions Judge Cuddalore made in S.C.No.154 of 2007, dated 19.12.2007. For Appellant : Mr.John Sathyan for Mr.B.B.Sendhilkumar For Respondent : Mr.A.Saravanan,G.A(Crl.side) JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Cuddalore made in S.C.No.154 of 2007 whereby the sole accused/appellant stood charged, tried and found guilty under section 302 IPC and awarded life imprisonment along with a fine of Rs.5000/-, in default, to undergo four years rigorous imprisonment. sentence. 2. The short facts necessary for the disposal of this appeal can be stated thus: (a) The accused, who is the husband of the deceased Kasthuri, P.Ws.1 and 2, who are the parents of the deceased, https://hcservices.ecourts.gov.in/hcservices/ were all residents of Ambedkar Nagar. The house of P.Ws. 1 and 2 is situate nearby the house of the accused. P.W.5 is the brother, P.W.10 is the mother and P.W.9 is also the resident of that area who has witnessed the quarrel between the spouse often. On the night of 5.1.2005 at about 9.30 p.m., the accused informed his mother P.W.10 that his wife died. Immediately, the same was informed to P.Ws.1 and 2. They immediately went inside the house and found the dead body. They entertained suspicion. P.W.1 proceeded to the respondent police station and gave a complaint Ex.P1 report at 3.00 p.m. on 6.1.2005. On the strength of Ex.P1 report, a case came to be registered under section 174(3) Cr.P.C. in Crime No.34 of 2005. The F.I.R. Ex.P15 was despatched to Court. (b) Since there was suspicion in the death of Kasthuri, a copy of the F.I.R. was given to P.W.18 Deputy Superintendent of Police of that place. P.W.18 took up investigation. He proceeded to the sport, prepared an Observation mahazar Ex.P5 and also drew a rough sketch Ex.P20. The copy of the F.I.R. was given to R.D.O. for making enquiry since the marriage between the accused and the deceased took place just 4 ½ years prior to the occurrence. P.W.17 R.D.O., on receipt of the copy of the F.I.R. proceeded to the spot, prepared an observation mahazar Ex.P17 and conducted inquest on the dead body and prepared Ex.P.18 inquest report in the presence of witnesses. The dead body was sent to post mortem. (c) P.W.14 doctor attached to the Government Hospital conducted autopsy and also gave his opinion that the deceased would have died 44 to 48 hours prior to post mortem and he could not fix the cause of death. The R.D.O further examined the witnesses and recorded their statement and gave his report in Ex.P19. Pending investigation, the accused came forward to give confessional statement voluntarily which was recorded by P.W.15 Village Administrative Officer and the admissible part of the same is marked as Ex.P23, pursuant to which, the accused produced M.O.1 Polyester saree which was recovered under a cover of mahazar. All the material objects were sent to the Court. The accused was sent for judicial remand. On completion of the investigation, the Investigating Officer filed a final report. (d) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges leveled against the accused, the prosecution examined 19 witnesses and relied on 24 exhibits and marked 1 material object. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses and he denied them as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took a view that the prosecution has proved its case beyond reasonable and awarded life imprisonment. Hence, this appeal at the instance of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that according to the prosecution, the occurrence has taken place at 9.30 p.m. on 5.1.2005 and there was no eye witness. The prosecution rested its case entirely on the medical evidence adduced and also the extra judicial confession alleged to have been given by the accused to P.W.15 Village Administrative Officer. The evidence putforth by the prosecution should have been rejected by the trial Court. In so far as the medical opinion was concerned, the post mortem doctor has categorically given his opinion that the deceased would have died of cardio- respiratory arrest and the cause of death could not be fixed. Hence, the case of the prosecution that she died of strangulation made by the accused was ruled out. The medical evidence was not in favour of the prosecution. 4. In so far as the alleged confessional statement given by the accused, pursuant to which recovery of the saree was made was concerned, according to the prosecution, the witness in this regard brought forth by the investigating officer was P.W.8 but P.W.8 has turned hostile. As per the evidence available, even on 6.1.2005, the accused was actually in the custody of the police. Under such circumstances, as if the accused was arrested on 8.1.2005 and gave confessional statement and pursuant to the same, he produced the saree were all invention and introduction in order to strengthen the prosecution case. If these two pieces of evidence fail, the prosecution has no evidence to offer. The trial Court has not considered the above aspects but found the accused guilty of murder. Therefore, the accused/appellant is entitled for acquittal. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that following the inquest made by P.W.17 R.D.O., he prepared the inquest report Ex.P.18 and the dead body was subjected to post mortem. P.W.14. doctor gave opinion in the post mortem certificate that the deceased would have died of cardio-respiratory arrest and the cause of death could not be fixed. The specific charge raised before the trial Court as against the appellant /accused was that the accused strangulated his wife and caused asphyxia and that was the cause of death of the deceased. In order to substantiate the same, the prosecution had no direct evidence to offer. It relied on two pieces of evidence. 7. As could be seen from the available records, firstly, the medical opinion canvassed through P.W.14 doctor. The prosecution attempted to place evidence before the trial Court stating since the accused was living with his https://hcservices.ecourts.gov.in/hcservices/ wife/deceased during the relevant period, he must come forward to give responsible answer how the death was caused but he did not give proper answer. The prosecution came forward with the specific charge that he actually strangulated his wife and caused the death but the medical opinion canvassed through the post mortem doctor P.W.14. and also the certificate stood contrary to the case of the prosecution. The opinion of the doctor found in the post mortem certificate Ex.P10 runs as follows. " I am of the opinion that there is no anti-mortem injury noted any where over the examined Hyoid bone except for the Post Mortem separation of (R) greater horn as described earlier. .... Anti mortem and Postmortem x-ray of neck. Hyoid bone – No fracture. " and the doctor has given final opinion which reads as follows: "The deceased would have died of cardio-respiratory arrest. The cause of which could not be clearly given." 8. This opinion given by the doctor and spoken as evidence before the Court would clearly reveal that the cause of death could not be fixed, apart from that, the doctor has given opinion that the death was caused due to cardio- respiratory arrest. Under such circumstances, it cannot be said that the medical opinion canvassed through the post mortem doctor is in favour of the prosecution case and could be used as against the accused. 9. The prosecution claims that the accused was arrested on 8.1.2005 and on that day he came forward to given confessional statement which was recorded by P.W.15 Village Administrative Officer and thereafter, the accused produced M.O.1 saree. This statement was not in favour of the prosecution since the only witness who was examined in that regard has turned hostile. Apart from that, it remains to be stated that the accused was actually available on 6.1.2005 and it was spoken by all the witnesses. When the accused was available all along with the police during the relevant time, the case of the prosecution that they arrested the accused only on 8.1.2009 and he gave confessional statement pursuant to which M.O.1 saree was recovered, is unbelievable and the same has got to be rejected. Under such circumstances, baring these two pieces of evidence, the prosecution has no other evidence before the trial Court and these evidence did not help the prosecution case at all. The Court is of the opinion that it would be highly unsafe to accept the evidence of prosecution to sustain the conviction as done by the trial court. The trial court, without considering all the above https://hcservices.ecourts.gov.in/hcservices/ aspects, has erroneously found the appellant guilty and hence, the judgment of the lower court has got to be made undone only by upsetting the same. 10. Accordingly, the criminal appeal is allowed, setting aside the conviction and sentence imposed on the appellant by the court below. The appellant is acquitted of the charge levelled against him. The bail bonds if any executed by the appellant shall stand terminated and the fine amounts if any paid by him is ordered to be refunded to him. vsi Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Principal Sessions Judge, Cuddalore. 2.The Inspector of Police, Nellikuppam Police Station, Cuddalore. 3.The Additional Public Prosecutor, High Court,Madras. 4.The Judicial Magistrate No.I, Cuddalore. 5.Do Through the Chief Judicial Magistrate, Cuddalore. 6.The District Collector, Cuddalore District. 7.The Director General of Police, Madras. 8.The Superintendent, Central Prison, Cuddalore. MBS(CO) SR/16.7.2009 CRL.A.No.100 of 2008 https://hcservices.ecourts.gov.in/hcservices/