IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.580 of 2007 Raja @ Rajendiran .. Appellant/Single Accused Vs. State Rep. by Inspector of Police, Arni Taluk Police Station, Thiruvannamalai Distirct. (Crime No.694 of 2002) .. Respondent/Complainant * * * Prayer : Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure against the judgment made in S.C.No.71 of 2004 dated 26.04.2007 by the learned District and Sessions Judge, Thiruvannamalai. * * * For Appellant : Mr.S.Suresh For Respondent : Mr.N.R.Elango Additional Public Prosecutor J U D G M E N T (Judgment of the court was delivered by K.N.BASHA, J.) Raja @ Rajendran, the sole accused in this case has come forward with this appeal challenging his conviction and sentence passed by the learned District and Sessions Judge, Tiruvannamalai, by the judgment dated 26.04.2007 in S.C.No.71 of 2004 convicting him for the offence under Section 302 IPC and sentencing him to life imprisonment and imposing a fine of Rs.10,000/-, in default, to undergo two years rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2. The accused faced the trial under the following backdrop : (i) The accused is the husband of the deceased. Both the accused and the deceased were doing wood-cutter profession. P.W.5 purchased mango trees from P.W.2 and engaged the deceased and the accused and one Gopal for cutting the mango trees and they were staying in the mango grove by putting up a tent. On 15.10.2002, the accused, deceased and the said Gopal went and asked their wages from P.W.5 at 5.00 p.m. and P.W.5 gave money to the accused and the deceased and they purchased provisions from that money. P.W.5 left for Chennai on the next day. (ii) P.W.3 is a child witness and she was residing along with the accused and the deceased as the accused is her uncle and the deceased is her aunt. It is stated by P.W.3 that the accused beat the deceased with a stick and also with a stone on her head and the deceased died and the said occurrence took place during mid night. It is further stated by P.W.3 that there were frequent quarrels between the accused and the deceased. It was claimed by P.W.3 that the deceased woke up her and informed that she was assaulted by the accused and the deceased died half an hour thereafter. P.W.3 after witnessing the occurrence slept at the place of occurrence. (iii) On 16.10.2002 at about 8.00 a.m., P.W.2, the owner of the mango grove, came to his mango grove and found the deceased lying dead with head injuries and P.W.3 was standing near the dead body. Thereafter, P.W.2 went to the office of P.W.1, Village Administrative Officer, at 11.45 a.m. and informed about the occurrence. P.W.1 went to the scene of occurrence and found the deceased lying dead and also found P.W.3, six year old child at the spot. P.W.3 stated that there were frequent quarrels between the accused and the deceased and she also stated that the deceased is her aunt. P.W.1 came back to his office along with P.W.2 and prepared a report, Ex.P.1 and went to the police station and gave the report, Ex.P.1 on 16.10.2002 at 4.00 p.m to the Inspector of Police, P.W.11, Arni Police Station. (iv) P.W.11, Inspector of Police, on receipt of the report, Ex.P.1, registered a case in Crime No.694 of 2002 under Section 302 IPC. Ex.P.14 is the printed First Information Report. He sent the report to the higher police officials and to the Court. (v) P.W.11 went to the scene of occurrence and prepared the Observation Mahazar, Ex.P.2 and the rough sketch, Ex.P.15 in the presence of P.W.4. He seized bloodstained earth, M.Os.1 and 3 and sample earth, M.Os.2 and 4 and a 10 rupee note, M.O.6, under Ex.P.3. He held inquest on the dead body of the deceased. Ex.P.16 is the inquest report. During inquest, he examined Ravi, Venkatesh, Perumal, Magi @ Magendran and Arumugam. He sent the body for post- https://hcservices.ecourts.gov.in/hcservices/ mortem. On 16.10.2002, he examined some of the prosecution witnesses and recorded their statements. (vi) P.W.9, the Doctor, attached to the Government Hospital, Arni, conducted post-mortem on 17.10.2002 at 1.00 p.m. as per the requisition, Ex.P.9. He found the following injuries : External : 1)35 years old female body with dried blood all over the face and both nostrils of nose. 2)Foul smelling and adematous body. 3)Lacerated injury on the parietal scalp 3 X 2 X 1/4 cm (brownish red) in left side. 4)Lacerated injury on the centre of frontal scalp 3 X 2 X 1/4 cm. 5)Lacerated injury on the left parietal region of scalp 2 cm below injury No.3 (Brown). 6)Contusion on the both eyes 3 X 3 X 1/4 cm (Bluish colour). 7)Eye brows are swollen and Bluish Colour. 8)Sub-Conjunctival Haemorrhage on both eyes present 9)tongue not protruded red pale colour. Teeth normal. 10)Nails of hands and toes of foot are slightly cyanosed. Lips also slightly pale. 11)Abrasion right cheek 5 X 3 cm (Black). 12)Abrasion of 3 X 2 cms black colour on the right neck. 13)Bluish, dilated veins seen in upper chest and both upper limbs 14)Ligature mark of 7 X 3 X 1/4 cm of black colour seen on the front of neck in the thyroid cartilage level running on the right neck upwards and backwards and 3 X 2 X 1/4 cm on left side of neck upwards and backwards 15)Abrasion on the right arm 3 X 2 cm (Brownish red) present. 16)Abrasion of 5 X 4 cm (Brownish red) on the right inguinal region of abdomen 17)Abrasion of 3 X 1/4 cm on the left leg (Brownish red) 18)Lacerated injury on the right palm between little and fourth finger of 4 X 2 X 1/2 cm 19)Lacerated injury on the left palm between 4th and 5th finger. 4 X 2 X 1/4 cm (both are Brownish red). 20)Abrasion on the lower abdomen 5 X 3 cm (Brownish red above the perineum). Internal Examination : 1) Contusion 5 X 4 X 1/4 cm on the right parietal region of scalp (Brownish read) 2) Contusion of 4 X 3 X 1/4 cm on the left parietal scalp (brownish red) 3) No fracture of skull https://hcservices.ecourts.gov.in/hcservices/ 4) Brain coverings normal except congested 5) Brain started liquifying. 6) Neck : On cut section of the ligature mark (on the right side and left neck), the base is congested and the margin show minute haemorrhages. The mark is soft. 7) The hyoid bone is normal. 8) Thyroid cartilage and larynx and trachea are normal. 9) The soft tissues of Thyroid cartilage shows contusion of 5 X 4 X 1/8 cm 10) Carotid artery is normal 11) Contusion of right chest mid clavicular line 5 X 4 X 1/4 cm below which fracture of 3, 4th rib, right present. 12) Both lungs are congested 13) Heart is normal. 14) Stomach contained 20 ml of pale brown liquid. 15) Intestines empty. 16) Liver spleen and kidneys are normal 17) Contusion of 5 X 5 X 1/2 cm in both thighs (upper region) with clotted blood seen. 18) No spine and long bone fracture. Hyoid bone viscera preserved for analysis. Ex.P.12 is the Post-mortem certificate. The Doctor opined that the deceased would appear to have died of asphyxia due to ligature strangulation after shock and haemorrhage due to head and multiple injuries within 36 to 48 hours prior to post-mortem. (vii) P.W.11, in continuation of his investigation, examined P.Ws.5 and 6 on 18.10.2002. On 21.10.2002 at about 10.00 a.m., the accused is said to have appeared before P.W.6, the Village Administrative Officer, and alleged to have given an extra-judicial confession, Ex.P.4. Thereafter, P.W.6 took the accused to the police station at 12.30 p.m. and the accused was arrested by P.W.11. In pursuance of the admissible portion of the confession statement Ex.P.5, P.W.11 recovered M.O.7, stick, M.O.8, stone, and M.O.9, a bit saree and M.O.10, ashes in the presence of witness, P.W.4 under the mahazar, Ex.P.6. Thereafter, he sent the material objects for chemical examination through the Court and obtained Reports, Exs.P.17 and 18. On 21.10.2002, P.W.11 examined P.Ws.3 and 6 and recorded their statements. On 21.02.2003 P.W.11 examined P.W.9 and recorded his statement. On 28.02.2003, P.W.11 completed his investigation and filed the final report against the accused under Section 302 IPC. 3. The prosecution, in order to bring home the charges levelled against the accused, examined P.Ws.1 to 11, filed Exs.P.1 to P.18 and marked M.Os.1 to 15. https://hcservices.ecourts.gov.in/hcservices/ 4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused has denied each and every circumstances as contrary to the facts and stated that he has been falsely implicated in this case. He has not chosen to examine any defence witness, but marked Ex.D.1, the statement recorded under Section 164 Cr.P.C. from P.W.3. 5. Mr.S.Suresh, learned counsel for the appellant/accused contended that the prosecution has miserably failed to establish the case beyond reasonable doubt against the accused by adducing clear and cogent evidence and put forward the following contentions : 1)The prosecution placed reliance on the sole testimony of P.W.3, a child witness, and her evidence suffers from infirmities and inconsistencies. 2)P.W.3, the child witness, has given a total go-by to her earlier version in the chief examination and categorically stated in the cross-examination that the accused was not present at the time of occurrence and he came to the house only after hearing about the alleged occurrence. 3)P.W.3, even during her statement recorded under Section 164 Cr.P.C., categorically stated that she has no knowledge about the alleged occurrence. 4)P.W.3 has also not informed about the occurrence to anyone including P.Ws.1 and 2, who went to the scene of occurrence, as per her admission in the cross-examination. 5)The accused could not have given the extra-judicial confession, Ex.P.4, to P.W.6, Village Administrative Officer who is a total stranger to the accused and as admitted by P.W.6 the accused was not known to him earlier and as such the accused could not have reposed confidence on P.W.6 to give any extra judicial confession and further the alleged extra-judicial confession is also said to have given only on 21.10.2002 and whereas the occurrence is said to have taken place on 15.10.2002. P.W.5 admitted in his cross- examination that he has seen the accused on 20.10.2002 and as such the version of the prosecution that the accused has given the extra-judicial confession to P.W.6 on 21.10.2002 and thereafter, he was produced before the police is unbelievable. 6)There is inordinate and unexplained delay in giving report to the police as the occurrence is said to have taken place on 15.10.2002 at about 8.00 p.m. and P.W.1, Village Administrative Officer, came to know about the same at 11.45 a.m. on 16.10.2002 and the report was alleged to have given by P.W.1 only at 4.00 p.m. 7)The prosecution has not examined any independent witness and the non-examination of one Gopal, who was also staying along with the accused and the deceased at the tent in the mango-grove is also vital to the prosecution case. https://hcservices.ecourts.gov.in/hcservices/ 6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor, contended that the prosecution has come forward with the clear and consistent evidence. It is submitted that the evidence of the child witness, P.W.3, is quite natural and the evidence of P.W.3 is also corroborated by the medical evidence through the Doctor, P.W.9, who has conducted post-mortem. The learned Additional Public Prosecutor further submitted that though there are certain infirmities and inconsistencies, the main case of the prosecution is not affected. It is further contended that the accused was absconding from the date of occurrence which clearly shows that he was responsible for causing the death of the deceased, who is none else than his wife. 7. We have given our careful and thoughtful consideration to the rival contentions put forward by either side and also thoroughly scrutinised the materials available on record and perused the impugned judgment of conviction. 8. The entire prosecution case rests on the sole testimony of the child eye-witness, P.W.3, aged about 6 years at the time of occurrence and the alleged extra-judicial confession, Ex.P.4, said to have been given by the accused to P.W.6, the Village Administrative Officer. It is seen from the perusal of the evidence of P.W.3 that P.W.3 has given a total go-by to her version in the chief examination during the course of cross-examination and categorically stated that she was totally unaware about the alleged occurrence. It is clearly stated by P.W.3 that the accused was not present at the time of occurrence and he came to the house only after hearing the death of the deceased and she is not aware as to how the deceased died. P.W.3 also categorically stated that she has not informed about the occurrence either to P.W.1, Village Administrative Officer, or to P.W.2. 9. It is pertinent to be noted that P.W.1, Village Administrative Officer, has also not whispered a word about P.W.3 informing him about the occurrence and about the accused attacking the deceased. A perusal of the evidence of P.W.1 makes it crystal clear that P.W.3 was simply present at the scene while P.W.1 went to the scene of occurrence on 16.10.2002 at 11.45 a.m. and she has merely stated that there were frequent quarrels between the accused and the deceased. As rightly pointed out by the learned counsel for the appellant P.W.3 categorically stated even in her statement recorded under Section 164 Cr.P.C. under Ex.D.1 that she is not at all aware about the occurrence. Therefore, we are of the considered view that it is most unsafe and hazardous to place reliance on the evidence of P.W.3 as her evidence suffers from serious infirmities and inconsistencies. https://hcservices.ecourts.gov.in/hcservices/ 10. Now coming to the evidence of P.Ws.1 and 2, we are constrained to state, at the outset, that their evidence is also not impressive. It is stated by P.W.1 that he was informed by P.W.2 that the deceased was murdered and he has not stated anything about the assailants. P.W.1 further categorically admitted in his cross- examination that P.W.2 informed him that the deceased was lying dead and someone attacked her with stone and stick. The evidence of P.W.2 also clearly shows that he has only found the deceased lying dead in the tent and P.W.3 was standing near the dead body. It is pertinent to be noted that curiously neither P.W.3 informed anything about the occurrence to P.W.2 nor P.W.2 enquired P.W.3 anything about the occurrence. 11. Added to these infirmities, there is an inordinate and unexplained delay in giving report, Ex.P.1, by P.W.1, Village Administrative Officer, to the police. It is seen that the occurrence is said to have taken place on 15.10.2002 at 8.00 p.m. and P.W.1, Village Administrative Officer, was informed about the unnatural death of the deceased by P.W.2 at 11.45 a.m. on 16.10.2002, but the fact remains that the report, Ex.P.1 was given by P.W.1 to P.W.11 only at 4.00 p.m. on 16.10.2002. It is further seen that the First Information Report reached the Magistrate Court only at 11.00 p.m. on 16.10.2002. There is absolutely no explanation for such an inordinate delay in giving First Information Report to the police and further delay in the First Information Report reaching the Court. 12. The infirmities, inconsistencies and improbabilities in the evidence of P.Ws.1 and 2 coupled with the inordinate and unexplained delay in registering the First Information Report as well as the First Information Report reaching the Court raises serious doubt about the veracity of the prosecution version. Therefore, we have no hesitation to hold that it is most unsafe and hazardous to place reliance on the evidence of P.Ws.1 and 2. 13. The yet another piece of evidence relied by the prosecution is the alleged extra-judicial confession, Ex.P.4 said to have been given by the accused to P.W.6, Village Administrative Officer, on 21.10.2002. It is pertinent to be noted that admittedly P.W.6 is a total stranger to the accused as categorically admitted by P.W.6 in his cross-examination that the accused was not known to him earlier and as such it is highly improbable for the accused to repose confidence on P.W.6 to give an extra-judicial confession. 14. The Hon'ble Apex Court in Sunny Kapoor V. UT of Chandigarh reported in 2006 (10) SCC 182 has held that it is wholly unlikely that the accused would make extra-judicial confession to a person whom they never knew. https://hcservices.ecourts.gov.in/hcservices/ 15. In yet another earlier decision in Jaspal Singh V. State of Punjab reported in 1997 SCC (Cri.) 358, the Hon'ble Apex Court has held that the prosecution has to show as to why and how the accused had reposed confidence on a particular person to give the extra- judicial confession. 16. The above settled principle of law laid down by the Hon'ble Apex Court is squarely applicable to the facts of the instant case as in this case also admittedly P.W.6 is a total stranger to the accused and as such the accused could not have reposed confidence on P.W.6 to give the extra-judicial confession, Ex.P.4. 17. Apart from the above infirmity and improbability in respect of the extra-judicial confession, Ex.P.4, it is also pertinent to be noted that P.W.5 has categorically stated that he has seen the accused at the police station on 20.10.2002 and therefore, the evidence of P.W.6, Village Administrative Officer, as well as the evidence of P.W.11, in respect of recording the alleged extra- judicial confession on 21.10.2002 and thereafter arresting the accused on that day is contradicted by the evidence of P.W.5 and as such the evidence of P.W.6 is also not at all inspiring the confidence of this Court. 18. For the reasons stated above, we are constrained to come to the inevitable conclusion that the impugned judgment of conviction is unsustainable and accordingly, the appeal is allowed and the conviction and sentence imposed on the appellant by the learned District and Sessions Judge, Thiruvannamalai, in S.C.No.71 of 2004 dated 26.04.2007 are set aside. Bail bonds executed, if any, are directed to be cancelled. Fine amount paid, if any, is directed to be refunded to the appellant. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Gg To 1. The District & Sessions Judge, Thiruvannamalai. 2. -do- thro The Principal Sessions Judge, Thiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/ 3.The Judicial Magistrate, Arni. 4. - do – thro" the Chief Judicial Magistrate, Thiruvannamalai. 5. The Superintendent Vellore Jail, Vellore 6. The Inspector of Police, Arni Taluk Police Station, Thiruvannamalai District. 7. The District Collector, Thiruvannamalai. 8. The Public Prosecutor, Madras High Court, Madras. 9. The Director General of Police, Chennai. 10. The Superintendent of Police, Thiruvannamalai. + 1 CC To Mr.M.Rana Prathap, Advocate SR NO.27640 Judgment in Crl.A.No.580 of 2007 TM {CO} TP/24.7.08 https://hcservices.ecourts.gov.in/hcservices/