IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.8.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN Criminal Appeal No.59 of 2009 Murugan .. Appellant/Accused Vs. State, rep. by Inspector of Police, Bargur Police Station, Dharmapuri District. (Crime No.19/1996) .. Respondent/Complainant Prayer: Appeal filed under Section 374(2) of Crl.P.C against the judgment of conviction and sentence imposed on the accused in S.C.No.255 of 2007, dated 29.7.2008, on the file of Additional Sessions Judge, Krishnagiri. For Appellant : Mrs.Jayasri Baskar For Respondent : Mr.Mohammed Ali Jinna Additional Public Prosecutor J U D G M E N T (Judgment of the Court was delivered by C. NAGAPPAN, J.) Appellant Murugan is the sole accused in Sessions Case No.255 of 2007 on the file of Additional Sessions Judge, Krishnagiri and he has preferred this appeal challenging the conviction and sentence imposed on him by judgment dated 29.7.2008 in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as accused. 2. Charges under Sections 302 and 307 IPC were framed against the accused. The learned Additional Sessions Judge found the accused guilty of the charges and convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.2000/-, in default, to undergo Simple Imprisonment for three years for the charge under Section 302 IPC and convicted and sentenced him to to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to undergo Rigorous Imprisonment for eighteen months for the charge under Section 307 IPC and ordered the https://hcservices.ecourts.gov.in/hcservices/ substantive sentence of imprisonment to run concurrently. 3. To prove its case, the prosecution examined P.Ws.1 to 13 and marked Exs.P1 to P15 and M.Os.1 to 20. 4. Briefly the prosecution case is stated as follows. PW.2 Amsa alias Amsaveni is the wife of the accused Murugan and deceased Malliga is their eldest daughter. Malliga got married at the age of 17 and lived for eight years with her husband and they had two daughters and two sons. PW.3 Kalpana is their youngest daughter. Malliga quarrelled with her husband and mother-in-law and plunged in a Well as a result of which she became paralyzed and she could not walk independently. Her husband gave her a sum of Rs.17,000/- towards maintenance and married another woman. Malliga was living with her parents and PW.3 Minor Kalpana was living with her. Accused Murugan, unable to maintain Malliga, used to quarrel with her and his wife PW.2 Amsaveni by consuming liquor. On 30.4.1996 at 10 pm, accused Murugan consumed liquor and came home and cut Malliga on the neck with MO.1 Knife and PW.2 Amsaveni tried to prevent further attack and the accused cut her on the neck, lower jaw and right shoulder with MO.1 Knife. On hearing the noise, PW.3 Kalpana woke up and saw the accused standing with the Knife. The accused Murugan threw the Knife on the ground and bolted the door of the house from outside and went away. PW.3 Kalpana was standing near the window looking for help and on hearing her cry, Perumal came and opened the door and PW.1 Prakash went there and saw Malliga lying dead and PW.2 Amsaveni struggling for life with bleeding injuries. PW.3 Kalpana went to inform her uncle PW.4 Dr.Venkatesan. On hearing the occurrence, PW.4 Dr.Venkatesan came to the occurrence place and saw Malliga lying dead and he gave first aid to his injured sister PW.2 Amsaveni and took her to C.M.C. Hospital, Vellore in the car. PW.1 Prakash wrote Ex.P1 Complaint and went to Bargur Police station and PW.8 Head Constable Narasimhan received the same and registered a case in Crime No.90/1996 under Sections 307 and 302 IPC and prepared Ex.P7 First Information Report and despatched the same to the Court and higher officers. P.W.11 Inspector Asokan received the Express Report and went to the occurrence place at 11 am and prepared Ex.P2 Observation mahazar in the presence of PW.5 Chinnaraj and another and Ex.P9 is the Rough Sketch drawn by him. He recovered M.O.1 Knife and seized MO.2 Blood stained cement floor, MO.3 Ordinary cement floor, MO.4 Blood stained blue blotting paper, MO.5 Towel, MO.6 Blood stained red colour blouse, MO.7 Blood stained Mat, MO.8 https://hcservices.ecourts.gov.in/hcservices/ Blood stained Thali, MO.9 Blood stained mat, MO.10 Blood stained brown colour blouse, MO.11 Blood stained pillow, MO.12 Blood stained bed-sheet, MO.13 Blood stained coconut tree stick and MO.14 Blood stained bamboo stick from the occurrence place under Ex.P3 mahazar in the presence of said witnesses. PW.10 Dr.Binu Pratap Thomas examined PW.2 Amsaveni on 1.5.1996 at 11.30 am at C.M.C. Hospital, Vellore and found the following. "1. One incised laceration on right lower 6 x 3 x 2 cm with fracture of mandible. 2. Incised laceration in the middle of the right side neck 15 x 5 x 3 cm with laceration C-5, C-6 and C-7 nerve roots of brachial plexus. 3. Incised laceration on the right shoulder with laceration of deltoid and Fracture of acromion distal 1/4th and fracture distal 1/4th clavicle. Ex.P8 is the Wound Certificate issued by him. P.W.11 Inspector Asokan conducted inquest on the body of Malliga from 12.45 pm to 3.25 pm in the presence of panchayatars and prepared Ex.P10 Inquest Report. At that time, he examined PW.1 Prakash, PW.3 Kalpana and some other witnesses and recorded their statements. He gave Ex.P4 Requisition to conduct post-mortem and sent the body through PW.7 Constable Dharman. P.W.6 Dr.Kalaivani conducted autopsy on the body of Malliga at 4.10 PM on 1.5.1996 and found the following: 1. Abrasion of 2 cm x 3 cm on the right side of the jaw. 2. Lacerated injury measuring 7 cm x 6 cm x 5 cm bone deep right side of the neck exposing the cervical vertebra and spinal cord, arteries and veins and cut edges of the muscles of the neck. 3. Two bed sores measuring 5 cm x 6 cm on both buttocks. Internal examination. Hyoid bone intact. Heart chamber empty. 150 gms. C/s. Pale Lungs Rt 250 grm. Lt 220 grm. C/s. Pale. Liver 900 grms. C/s. Pale. https://hcservices.ecourts.gov.in/hcservices/ Stomach empty. Spleen 100 grms. C/s. Pale. Each kidney weigh 100 grm. Uterus normal. C/s. Cavity empty. Bladder empty. Skull bones intact. Brain 1000 grms. C/s. Pale." She expressed opinion that the deceased died due to shock and haemorrhage as a result of injury to the vital organ, 12-15 hours prior to autopsy. Ex.P5 is the Post-mortem Certificate issued by her. P.W.11 Inspector Asokan examined PW.5 Chinnaraj and some other witnesses on 1.5.1996 and recorded their statements. He examined PW.7 Constable Dharman, PW.8 Head Constable Narasimhan, PW.9 Duraisami and some other witnesses on 2.5.1996 and recorded their statements. He searched the accused Murugan, but could not apprehend him. On 12.5.1996, he examined PW.2 Amsaveni and recorded her statement. He gave Ex.P11 Requisition to send the properties for chemical examination and they were sent by Exs.P12 and P13 Letters of the Court. Exs.P14 and P15 Chemical Examiner reports were received in Court. He examined PW.6 Dr.Kalaivani on 4.7.1996 and recorded her statement. He was transferred and PW.12 Inspector Jagannathan continued the investigation and examined PW.4 Dr.Venkatesan on 23.12.1996 and recorded his statement. He also examined PW.10 Dr.Binu Pratap Thomas and recorded his statement. He completed the investigation on 13.1.1997 and filed final report against the accused. The accused Murugan was absconding and PW.13 Inspector Aruljothi Arasu arrested the accused on information at 4 pm on 6.10.2007 near Basavanakoil in Krishnagiri to Kuppam Road and sent him for judicial remand. 5. The accused was questioned under Section 313 Cr.P.C and he denied complicity. No witness was examined and no document was marked on his side. 6. The Trial Court found the accused guilty of the charges and sentenced him as stated earlier. Challenging the same, the accused has preferred the present appeal. 7. The learned counsel for the appellant/accused contends that P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana, who are the eye witnesses, were recalled on the petition filed by accused Murugan and further cross-examined on 24.4.2008 and in their testimonies they have stated that their earlier testimonies given on 2.4.2008 were under duress on account of threat by the police and accused Murugan had not inflicted the injuries and they do not know as to who the assailant was and the counsel further contends that their testimonies are helping the defence and the benefit of such evidence should go to https://hcservices.ecourts.gov.in/hcservices/ accused since they were not treated as hostile and eschewing the above testimonies, there is no evidence on record to implicate accused Murugan in the case and hence, the conviction and sentence imposed on accused are liable to be set aside. In support of her submission, she placed reliance on the decision of the Apex Court in KUNJU MUHAMMED ALIAS KHUMANI AND ANOTHER V.. STATE OF KERALA [2004 SCC (CRI) 1425]. Per contra, the learned Additional Public Prosecutor submits that P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana were examined and cross-examined on 02.4.2008 and in their testimonies they have supported the prosecution case and subsequently, accused Murugan filed a petition under Section 311 CrPC to recall and further cross-examine them and that petition was allowed by the trial Court on 11.4.2008 and they were further cross- examined on 24.4.2008 and only in the further cross-examination, the witnesses have resiled from the previous testimonies and their previous testimonies cannot be doubted and the conviction and sentence imposed on accused Murugan are sustainable. In support of his submission, the learned Additional Public Prosecutor relies on the decision of the Apex Court in NISAR KHAN ALIAS GUDDU AND OTHERS V.. STATE OF UTTARANCHAL [(2006) 2 SCC (CRI) 568]. 8. P.W.2 Amsa @ Amsaveni is the wife of accused Murugan and the deceased Malliga is their eldest daughter. Malliga was given in marriage when she was 17 and she lived with her husband for eight years begetting two sons and two daughters and P.W.3 Kalpana is their youngest daughter. On account of misunderstanding with her husband and mother-in-law, Malliga plunged into Well, as a result of which she was paralysed and unable to walk. Her husband deserted her by paying a maintenance amount of Rs.17,000/- and left their youngest daughter, namely, P.W.3 Kalpana, in her custody. Malliga along with her daughter P.W.3 Kalpana was living with her parents. Unable to maintain Malliga, accused Murugan used to quarrel with her and P.W.2 Amsa @ Amsaveni often by drinking liquor. P.W.2 Amsa @ Amsaveni in her testimony given on 2.4.2008 has stated that accused Murugan came drunk to the house at 10.00 p.m. and cut Malliga with M.O.1 Knife on the neck and she tried to prevent the further attack and accused Murugan cut her on the neck, lower jaw and right shoulder with M.O.1 Knife and threw the knife on the ground and went away by bolting the door from outside. P.W.3 Kalpana in her testimony on 2.4.2008 has deposed that on the occurrence night, she went to sleep and on hearing the noise, she woke up and saw her mother and grandmother lying with bleeding injuries and the grandfather, namely, accused Murugan, was standing with knife in his hand and the accused went away by bolting the door from outside and she was peeping through the window and hearing her cry, somebody came and opened the door and she went to inform her uncle, P.W.4 Dr. Venkatesan. P.W.1 Prakash is a neighbour and he has stated that he heard the cry and reached the occurrence place and saw Malliga lying dead with injuries and P.W.2 Amsa @ Amsaveni struggling for life with bleeding injuries and on hearing the occurrence, P.W.4 Dr. Venkatesan came to the https://hcservices.ecourts.gov.in/hcservices/ occurrence place and took P.W.2 Amsa @ Amsaveni to the hospital and he went to Bargur Police Station and lodged Ex.P1 Complaint. 9. When the trial is pending, accused Murugan filed a petition under Section 311 CrPC to recall P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana and to further cross-examine them and no objection was raised by the prosecution and that petition was allowed on 11.4.2008 and P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana were further cross- examined on 24.4.2008 and P.W.2 Amsa @ Amsaveni in her further cross-examination has stated that her husband, namely, accused Murugan, had gone to her sister-in-law house at Kannadahalli village on the occurrence night and stayed there and the electric bulbs in their house were not burning on the occurrence night and only a chimney was burning and her vision was dull and she could not identify the assailant, who attacked her and her daughter, and there was threat by the police and her earlier testimony was given under duress. P.W.3 Kalpana in her further cross-examination on 24.4.2008 has stated that she was sleeping on the occurrence night and she never knew as to who the assailant was and her earlier testimony was as a result of tutoring by the police. It is really surprising to note that the prosecution did not treat P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana as hostile witnesses on 24.4.2008 and did not seek the permission of the Court for declaring them as such. The fact remains that P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana were never declared as hostile witnesses. In the decision in NISAR KHAN ALIAS GUDDU AND OTHERS V.. STATE OF UTTARANCHAL (stated supra), relied on by the learned Additional Public Prosecutor, the prosecution witnesses were recalled on petition and further examined after lapse of more than one year and they resiled from the previous statements and were declared hostile and in such circumstances, the Apex Court accepted the earlier testimonies which supported the prosecution story. The above decision does not apply to the facts of the present case, since the eye witnesses here were not declared as 'hostile' by the prosecution. On the other hand, in the decision in KUNJU MUHAMMED ALIAS KHUMANI AND ANOTHER V.. STATE OF KERALA (stated supra), relied on by the learned counsel for the appellant, the Apex Court has laid down that when the witness has not been treated hostile by the prosecution, and even then his evidence helps the defence, the benefit of such evidence should go to the accused and not to the prosecution. In the present case, the testimonies of P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana have to be considered as a whole and if it is so considered, the resultant position is that they supported the case of the prosecution in their testimonies given on 02.4.2008 and in their further testimonies given on 24.4.2008 declared their earlier testimonies as given under duress by the threat of police and the witnesses have further stated that they did not know as to who the assailant was. The benefit of this evidence should go to the accused since they were not declared hostile. In short, P.W.2 Amsa @ Amsaveni and P.W.3 Kalpana are not reliable witnesses and their testimonies are unworthy of credence. https://hcservices.ecourts.gov.in/hcservices/ 10. Malliga died of Homicidal Violence is established by the testimony of the post-mortem doctor. P.W.6 Dr. Kalaivani conducted autopsy and she has testified that she found a lacerated injury on the neck exposing the cervical vertebra and spinal cord and arteries and veins were cut and she has expressed opinion that the deceased died due to shock and haemorrhage as a result of injury to the vital organ. Ex.P5 is the post-mortem certificate issued by her. Accepting her testimony, it is clear that Malliga died of injury sustained in the occurrence. 11. Though M.O.1 Knife is said to have been recovered from the occurrence place by the Investigation Officer in the presence of witnesses under Ex.P3 Mahazar, it is not established that it is the weapon of offence. There is no acceptable evidence available on record to implicate accused Murugan in the case and the prosecution has failed to prove the charges framed against him. The conviction and sentence imposed by the trial Court are liable to be set aside. 12. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the Appellant/Accused Murugan in Sessions Case No.255 of 2007 on the file of the Additional Sessions Judge,Krishnagiri,are set aside and the Appellant/Accused Murugan is acquitted of all the charges and the fine amount paid, if any, is to be refunded to him. The Appellant/Accused Murugan is directed to be released forthwith if his custody is not required in any other case. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar vks/pb To 1. The Addl. Dist. & Sessions Judge, Krishnagiri. 2. - do – through the Principal Sessions Judge, Krishnagiri. 3. The Superintendent of Prison, Central Prison, Vellore. 4. The Inspector of Police, Bargur Police Station, Krishnagiri. 5. The Director General of Police, Mylapore, Chennai 4. 6. The District Collector, Krishnagiri. 7. The Public Prosecutor, High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras 104. + 1 cc to Mr.Jaya Sri Baskar,Advocate,SR.35930 Crl.A.No. 59 of 2009 MBS(CO) EM/19.8.09 https://hcservices.ecourts.gov.in/hcservices/