IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL No.362 of 2009 A.Murali ..Appellant/ Petitioner ..vs.. State rep.by its Inspector of Police, P-1, Police Station, Dharmapuri, Dharmapuri District. (Crime No.1607 of 2007) ..Respondent/Complainant Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned Principal Sessions Judge, Dharmapuri, made in S.C.No.65 of 2008, dated 30.04.2009. For Appellant : Mr.G.J.Baskarnarayanan For Respondent : Mr.Babu Muthu Meeran, A.P.P., JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Dharmapuri, made in S.C.No.65 of 2008, whereby the sole accused stood charged, tried and found guilty under Section 302 I.P.C.and awarded the life imprisonment along with a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one year. 2. Short facts necessary for the disposal of the appeal can be stated thus: (a) The deceased Prema is the sister of P.W.1. The appellant/accused is her husband. The marriage between the deceased and the appellant took place nine years prior to the occurrence. P.W.2 is the cousin brother of the deceased and P.Ws.3 and 4 are the neighbours. The appellant/accused had illicit intimacy with so many https://hcservices.ecourts.gov.in/hcservices/ ladies, so that there were frequent quarrels between the deceased and the appellant. This fact was known to the neighbours including P.Ws.3 and 4. On 22.12.2007 at about 4.00 PM., Prema informed to P.W.2 by phone that she wants to go to the temple, so that he would come there. Accordingly, at about 5.30 PM, P.W.2 went to the house. At that time, the accused and the deceased were quarreling. P.W.2 left for taking a cup of tea outside and after half-an-hour, he was coming back. Pursuant to the quarrel, the accused poured kerosene on his wife Prema and lit fire and he was about to run from the place of occurrence and the entire incident was noticed by P.W.2. On hearing the distressing cry, P.Ws.3 and 4 came there and all of them had put off the fire and an information was given to P.W.1 and he rushed to the house of Prema. He enquired with Prema and she informed him that it was the accused who poured kerosene and set her ablaze. P.W.1 and others took Prema to the Dharmapuri Government Hospital, where she was declared dead. Thereafter P.W.1 proceeded to the respondent Police Station on 23.12.2007 at about 10.30 AM and gave Ex.P-1 complaint to P.W.9 Sub-Inspector of Police. (b) On the strength of which, a case came to be registered in Crime No.1607 of 2007 under section 302 IPC and the express F.I.R. Ex.P-6 was despatched to the Court and a copy of the same was served upon the Inspector of Police, P.W.10. On receipt of the copy of the first information report, P.W.10 proceeded to the spot, made an inspection, prepared Ex.P-2 observation mahazar, Ex.P-7 rough sketch and thereafter, recovered M.Os.1 to 4 in the presence of the witnesses under the cover of mahazar Ex.P-3 and he caused the photographs to be taken through P.W.7 and the photos and negatives are marked as M.O.5 series. Thereafter, he sent the dead body to the hospital for the purpose of post-mortem along with his requisition. (c) On receipt of the said requisition, P.W.8, doctor attached to the Dharmapuri Government Hospital, conducted autopsy on the dead body of Prema and gave a post-mortem certificate, Ex.P-5 wherein he opined that the deceased would appear to have died due to burn injuries i.e.17 to 26 hours prior to the autopsy. Pending investigation, the investigating officer arrested the accused on 25.12.2007 at about 4.30 PM, who gave the confession statement and the same was recorded. He was sent for judicial remand and the material objects were sent for chemical analysis. On completion of investigation, the Investigating officer filed the final report against the accused before the Court. (d) The case was committed to the Court of Session, Dharmapuri and necessary charges were framed. In order to substantiate the charges, the prosecution examined 11 witnesses and also relied on 14 exhibits and 5 material objects. On completion of the evidence on https://hcservices.ecourts.gov.in/hcservices/ the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the defence, D.W.1 was examined and Ex.D-1 was marked. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant/accused guilty and awarded the punishment of life imprisonment, which is the subject matter of challenge before this Court. 3. Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has miserably failed to establish their case either by direct or by substantial evidence; that the case of the prosecution was that on 22.12.2007 at about 5.30 PM the occurrence had taken place; that according to P.W.2, he was invited by the deceased Prema and accordingly, he went to the house and at that time, the accused poured the kerosene and set her ablaze and he witnessed the same; that had it been true and if really P.W.2 had witnessed the crime, he should have approached the police and given a complaint, but he failed to do so and in fact, he along with others have taken Prema to the hospital; these two facts would be indicative that P.W.2 could not have been an eye witness; that apart from that, P.Ws.3 and 4, who are the neighbours, should have naturally enquired with Prema; that had she informed them about the incident, they would have approached the police, but they have not done so; that according to P.W.1, he was at Palacode and he heard the incident and immediately he came to the house of Prema and if he was informed about the incident, at the night hours he should have approached the police; but P.W.1 approached the police after her death, that too on the next day i.e.on 23.12.2007 at about 10.30 AM, with the delay of nearly about 13 hours; that if really such an incident had taken place, immediately he should have approached the police without delay and that the evidence of P.W.1 that he got information from Prema that it was the husband who poured kerosene and set her fire, would indicate that the evidence of P.W.1 was thoroughly a false one. 4. Added further the learned counsel that he has actually taken Prema to the hospital, wherein she made a statement to D.W.1 to the effect that she poured kerosene on herself and she made an attempt to commit suicide and the same was recorded and marked as Ex.D-1; but the prosecution has thoroughly suppressed the medical examination by the doctor and the statement made by her to D.W.1; that had this document was produced and evidence was adduced in this regard, the prosecution would have lost the case and thus, the non-production on the part of this evidence would be suffice to take a presumption under section 114 of the Evidence Act and thus, it should be taken in favour of the accused. Added further the learned counsel that in the https://hcservices.ecourts.gov.in/hcservices/ instant case, the evidence produced by the accused through D.W.1 and the contents of Ex.D-1 which would go to show that the deceased herself attempted to commit suicide, makes the prosecution evidence improbable and unacceptable and the prosecution has miserably failed to prove its case and the trial court has not considered the above factual or legal position while rendering judgment and hence, the judgment has got to be set aside. 5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Prema, the wife of the appellant/accused, following the incident that took place on 22.12.2007 at 5.30 PM, was taken to the hospital and declared dead and following the registration of the case by P.W.9, the Sub Inspector of Police of the respondent Police Station, the investigator, P.W.10 had conducted the inquest on the dead body of Prema and prepared the inquest report and following the same, the dead body was subjected to post-mortem by the doctor P.W.18, who has given a categorical opinion, as a witness before the Court and through the contents of the post-mortem certificate Ex.P-5 that he died of 100% burn injuries and the fact that Prema died out of homicidal violence was never disputed by the appellant at any stage of the proceedings. Hence no impediment is felt in recording so. 7. In order to substantiate the charge against the accused that the accused poured kerosene and set her ablaze, the prosecution rested its case on the evidence of P.W.2, the only eye witness. According to P.W.2, he got a phone message from the deceased and accordingly, he reached her home at about 4.30 PM and at that time, there was a quarrel between the couple and then, he left that place and within a short time, he returned to the house and witnessed the appellant pouring kerosene on Prema and setting her fire and the accused fleeing from the place of occurrence. All the neighbours including P.Ws.3 ad 4 gathered there on hearing the distressing cry. If really such an incident was witnessed by P.W.2, who is none else than the cousin brother, the close relative of the deceased, he should have immediately rushed to the police and informed the same; but he has failed to do so. Apart from that, P.W.1, the own brother of the deceased was informed only during the night hours. The above would clearly indicate that P.W.2 could not have been present at the place of occurrence at all and the other circumstances noticed, which are against the prosecution and in favour of the accused, are P.W.1 claimed to have reached the place of occurrence on the very night and also enquired the deceased who told P.W.1 that it was her husband who poured kerosene and set her ablaze and despite the death of the deceased, P.W.1 he did not inform the police immediately; but the complaint was given only on 23.12.2007 at 10.30 AM, that was after 13 https://hcservices.ecourts.gov.in/hcservices/ hours, which would be clearly indicative that P.W.1 could not have come to the place of occurrence on the date of occurrence or enquired with Prema, as claimed by him and hence, the evidence of P.W.1 becomes highly doubtful in this regard. In the instant case, the Court is able to notice that the prosecution was not only fair but unfair in not filing the medical evidence, which should have been produced. As could be seen from the evidence of D.W.1, he gave treatment to Prema immediately and also the words uttered by her were also recorded by D.W.1, which is marked as Ex.D-1. A perusal of Ex.D-1 clearly indicates that Prema has mentioned to the doctor that she poured kerosene on herself and attempted to commit suicide and thus, this is an act of self immolation and the Court is unable to notice as to why the evidence of D.W.1 and the contents of Ex.D-1 have got to be doubted by the trial Court. Thus, when the evidence of D.W.1 coupled with Ex.D-1 produced by the defence would clearly indicate that it was an act of self immolation on the part of the deceased, at this juncture, it is pertinent to point out that the prosecution, in its fairness, should have produced the evidence of D.W.1 and Ex.D-1, but failed to do so and thus, the non-production of the above evidence by the prosecution would clearly indicate that the above evidence if produced, the case should have gone against the prosecution and hence, the prosecution had suppressed the same. Thus, all these things would indicate that the prosecution has failed to prove either by direct evidence or by indirect evidence the charge levelled against the accused; on the contrary, the defence is able to disprove the case of the prosecution by examining D.W.1 and marking Ex.D-1. But without considering the factual and legal position, the trial Judge has taken an erroneous view finding the appellant guilty, which, in the considered opinion of the Court, is liable to be set aside. For the reasons stated above, the criminal appeal is allowed and the conviction and sentence imposed by the trial court are set aside and the appellant/accused is acquitted of the charge framed against him. The appellant is directed to be released forthwith unless his presence is required in connection with any other case. The fine amount, if any, paid by him will be refunded to him. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gl https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Sessions Judge Dharmapuri. 2. The Judicial Magistrate No.1, Dharmapuri. 3. The Chief Judicial Magistrate, Dharmapuri. 4. The District Collector, Dharmapuri. 5. The Director General of Police, Chennai. 6. The Superintendent, Central Prison, Vellore. 7. The Inspector of Police, Inspector of Police, P-1, Police Station, Dharmapuri, Dharmapuri District. 8. The Public Prosecutor High Court, Madras. + 1 cc to Mr.G.T.Baskar Narayanan, Advocate, SR.No.56966. Judgment in Crl.A.No. 362 of 2009 PUR (CO) A.S 04.11.2009 https://hcservices.ecourts.gov.in/hcservices/