IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.01.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.406 OF 2008 Ayyanar .. Appellant / Accused Vs. The State of Tamil Nadu rep. by the Inspector of Police, Omalur Police Station, Salem District .. Respondent / Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Salem made in S.C.No.125 of 2005, dated 11.8.2005. For Appellant : Mr.G.K.M.Appaji For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Salem made in S.C.No.125 of 2005, whereby the sole accused/appellant stood charged under Sections 302 and 392 IPC, tried, found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months R.I. under Section 302 IPC and 7 years R.I. and to pay a fine of Rs.1000/-, in default to undergo 6 months R.I. under Section 392 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)P.W.1 is the husband of the deceased Ellammal and is residing at Omalur Vattakadu within the jurisdiction of the respondent police station. The accused also belonged to the same place. On 09.01.2004, P.W.1 and his wife took the goats for grazing in the morning hours. Some time later, P.W.1 went to purchase grocery at Vellalapatti and returned in the afternoon. When he came back at about 2.45 p.m., he could not see his wife. At that time, one Unnamalai was also grazing https://hcservices.ecourts.gov.in/hcservices/ her buffalo. P.W.1 asked her about his wife and she has replied that his wife has taken the goats in the southern direction. Immediately, he went in search of her in the said direction, but he could not see his wife and he shouted. On hearing the shouting, one Pachaiyappan, who was returning from work, came there and asked him about his shouting. P.W.1 told him that his wife, who went for grazing, was not found. At that time, Pachaiyappan told him that a body was lying nearby. Immediately, P.W.1 went there and found the dead body of his wife and she was tied by a towel over her mouth and he noticed that the blood was oozing and also found incised wounds on both the sides of temporal region, left side shoulder and beneath the jaw. He also found that the gold ear stud was also found missing. b)Immediately, he proceeded to the respondent police station and gave a complaint Ex.P.1 at about 4.30 p.m. to P.W.10, the Sub Inspector of Police. On the strength of the same, P.W.10 registered a case in Crime No.14 of 2004 under Section 392 r/w Section 397 and 302 IPC. Ex.P.13, the F.I.R. was despatched to the Court. c)P.W.11, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.14, the rough sketch. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.15, the inquest report. He recovered the material objects from the place of occurrence under a cover of mahazar. The dead body was sent to the Government Hospital, Salem for the purpose of autopsy. d)P.W.12, the Doctor attached to the Salem Government Mohan Kumaramangalam Medical College, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.17, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to head injuries. e)P.W.13, the Inspector of Police, took up further investigation. On 19.4.2004, the accused surrendered before the Judicial Magistrate No.1, Mettur in respect of Crime No.111 of 2004 of the very same Omalur Police station. The police custody was sought for and it was actually ordered. Pending police custody, the accused came forward to give confessional statement, which was recorded in the presence of P.W.7, V.A.O. and also the other witness. The admissible part of the confessional statement was marked as Ex.P.6. Thereafter, the accused took the police party to P.W.8, from whom M.O.4, gold stud worn by the deceased was recovered and it was identified by P.W.1. P.Ws.4 and 5 came forward to give statements stating that they found the accused nearby the occurrence place at the time of occurrence and their statements were recorded by the concerned Judicial Magistrate under Section 164 Cr.P.C. On completion of the investigation, the Investigating Officer has 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 https://hcservices.ecourts.gov.in/hcservices/ against the accused, the prosecution examined 13 witnesses and also relied on 17 exhibits and 9 M.Os. 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, which he flatly denied as false. No defence witness was examined. The trial court, on hearing the submissions made and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty as per the charges and awarded punishments as referred to above. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer, but it has relied on only two circumstances; that firstly, the evidence of P.Ws.4 and 5; that according to them, they found the accused near the place of occurrence at or about the time of occurrence; that secondly, the recovery of M.O.4 gold stud, which was worn by the deceased at the time of occurrence; that according to the prosecution, the accused actually surrendered before the Judicial Magistrate, No.1, Mettur in respect of Crime No.111 of 2004 of the very same police station; that he was actually sent for judicial remand; that thereafter, the police custody was sought for and after a period of two months, his confessional statement has been recorded; that it has been shown as if he pledged the jewels with P.W.8; that the same has been recovered only in the month of June, 2004; that it would be quite clear that all the documents are cooked up for the purpose of the case; that the statements of P.Ws.4 and 5 were recorded on 25.04.2004 and it has reached the court only on 09.12.2004; that the evidence of P.Ws.4 and 5 should not have been relied on for the simple reason that they claimed that they have seen the accused at the time and place of occurrence, but they have not whispered the same to anybody for a period of 3 months; that their statements were recorded on 25.4.2004 and it was sent to court only on 09.12.2004 and thus, it would be indicative of the fact that they could not have seen him at all and hence their evidence should have been rejected and that the prosecution has miserably failed to prove its case and hence the appellant is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that Ellammal, the wife of P.W.1 was found dead on 09.01.2004 at the time and place of occurrence as put forth by the prosecution. Following the inquest made by P.W.11, the Investigating Officer and the preparation of the inquest report, the dead body was subjected to post-mortem by P.W.12, the Doctor, who has given his categorical opinion in Ex.P.17, the post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to the head injuries. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial court or before this court and hence it has got to be recorded so. https://hcservices.ecourts.gov.in/hcservices/ 7.In order to substantiate the charges levelled against the accused/appellant, the prosecution had no direct evidence to offer, but it has relied on only two circumstances. Firstly, P.Ws.4 and 5 saw the accused coming near the place of occurrence at about 3.00 to 3.30 p.m. on 09.01.2004. This was shown as one of the strong circumstances and the same was relied on by the prosecution and the trial court has also accepted the same. This court is afraid whether it can accept that circumstance to sustain conviction for the simple reason that their statements were recorded only on 25.04.2004 and they were sent to court only on 09.12.2004. It is pertinent to point out that P.Ws.4 and 5 belonged to the same village. The dead body was found by them on the same day and the case was registered on that day itself and the investigation was on. The investigator would claim that he visited the village and proceeded with the investigation and enquired the villagers on the very day. Had it been true that P.Ws.4 and 5 have witnessed the accused coming from the place of occurrence immediately after the occurrence, they would have naturally spoken about the same, but they have kept silence for a period of a few months. Thus, the silence on their part would be indicative of the fact that the have come forward to give a false statement. 8.The second circumstance was the recovery of M.O.4, gold stud, which belonged to the deceased and was worn by her at the time of occurrence. This part of the evidence also cannot be relied upon. Admittedly, the accused was involved in Crime No.111 of 2004 of the very same police station. The accused actually surrendered and was sent for judicial remand and he was in the judicial custody. Pending same, the Investigator asked for the police custody in this case and took him into custody and during that time, the accused came forward to give confessional statement, alleging his involvement in the crime. It is claimed by the prosecution that the accused took the police personnel to P.W.8, with whom M.O.4 gold stud was actually pledged. It is clear that this part of the evidence could have been created for the purpose of the case, which is quite evident from the intervening circumstances that the occurrence in this case has taken place on 09.01.2004 and he was actually taken to police custody in Crime No.111 of 2004 of the very same police station in the month of April, 2004 and when he was in judicial custody, the police custody was asked for and during the police custody, his confessional statement was recorded and the recovery of M.O.4 has taken place. All would go to show that these documents could have been created only for the purpose of the present case. Under these circumstances, no reliance could be placed on those documents. Hence the prosecution has miserably failed to place and prove the necessary circumstances, pointing to the guilt of the accused. The trial court has also miserably failed to notice these lacunas in the evidence, but has taken an erroneous view and found him guilty. Hence the judgment of the trial court has got to be made undone only by upsetting the same. 9.Accordingly, this criminal appeal is allowed, setting aside the conviction and sentence imposed on the appellant by the trial court. The appellant is acquitted of the charges levelled against him and is directed to be released forthwith unless his presence is required in https://hcservices.ecourts.gov.in/hcservices/ connection with any other case. The fine amount if any paid by him shall be refunded to him. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Principal Sessions Judge, Salem. 2.The Superintendent, Central Prison, Coimbatore. 3.The Inspector of Police, Omalur Police Station, Salem District. 4.The Additional Public Prosecutor, High Court, Madras. 5.The District Collector, Salem. 6.The Director General of Police, Madras. 1 cc To Mr.C.K.M.Appaji, Advocate, SR.3273 CRL.A.NO.406 OF 2008 SR(CO) SRA(03/02/2009) https://hcservices.ecourts.gov.in/hcservices/