BAIL SLIP The accused is directed to released on bail, made in Crl.M.P.1/07 in Crl.A.No.928/06 order dt.13.03.2007 on the file of the High Court of Madras, Madras -1 04. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.6.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.928 of 2006 Ramakrishnan .. Appellant/Accused Vs. State by Inspector of Police Arani Police Station Arani. .. Respondent/ Complainant ----- Appeal filed under Section 374 Cr.P.C against the judgment of the learned District and Sessions Judge, Thiruvannamalai, dated 17.1.2006 made in S.C.No.50 of 2005. ----- For Appellant : Mr.S.Samuel Raja Pandian For Respondent : Mr.N.R.Elango Additional Public Prosecutor ----- J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The appellant, sole accused in S.C.No.50 of 2005 on the file of the learned District and Sessions Judge, Thiruvannamalai was charged by the respondent police alleging that the accused being aggrieved over the fact of his wife delivering four female children, on the date of occurrence at viz., 7.9.2004 at 9.30 p.m. quarrelled with her with a view to contract a second marriage and after sharing the bed with her at about 10.00 p.m., the accused again tried to have sex at about 3.00 a.m. for which the wife refused because of which, the accused, with the intention to murder her, threw a grinding stone on her left head and thereby caused injuries on her head and neck and pressed her neck with his right leg and caused her instantaneous death and thereby, committed the offence punishable under section 302 IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. On the basis of the evidence let in by the prosecution, the learned Sessions judge convicted and sentenced the accused to undergo life imprisonment and also to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for one year under section 302 IPC. Challenging the same, the accused has come forward with this appeal. 3. The case of the prosecution, in nutshell, is as under: (a) P.W.1 is the mother of the deceased. The accused and the deceased are husband and wife. They loved each other and their marriage took place about 9 years prior to the occurrence. They had four female children out of the wedlock. Dissatisfied with the fact of his wife delivering four female children, the accused left his wife. Thereafter, the deceased wife was living alone with her children. The accused used to visit his wife frequently and quarrel with her saying that since she delivered all female children, he wants to remarry. For that, the accused sought her consent. Since the deceased refused to give consent, the accused used to declare that only after her death, he would marry again. On the date of occurrence, viz., 7.9.2004 night P.W.1 had seen off her daughter who left for her house. Next day at about 6.30 a.m., P.W.1 bought milk for her grandchild and went to her daughter's house. P.W.1 saw her daughter lying on the floor with her face covered by cloth. When P.W.1 called, her daughter did not wake up and P.W.1 saw her daughter's hands being tied from behind. P.W.1 raised alarm and on hearing the same, neighbours came there. P.W.5, Mala, a neighbour informed P.W.1 that last night there was a wordy duel between the accused and the deceased. Thereafter, P.W.1 went to the police station and gave Ex.P1 complaint. (b) P.W.3, daughter of the deceased, who was studying 4th standard at the time of deposition, was awake when the accused tied the hands of deceased with saree. She saw her father putting cloth into the mouth of deceased, who was sleeping at that time, and throwing M.O.3 grinding stone on the head of deceased. Then, the accused beat the deceased on her face and left the place on a cycle. Thereafter, P.W.3 slept. (c) P.W.8, Sub Inspector of Police, registered a case on receipt of complaint from P.W.1 on 8.9.2004 at about 9.00 a.m. Then, he prepared Ex.P18, printed FIR and sent the same to the concerned Magisterial Court as well as higher officials. (d) P.W.9, Inspector of Police, on receipt of FIR, took up investigation, visited the scene at about 10.00 a.m., prepared observation mahazar, Ex.P5 in the presence of P.W.4 and others and drew Ex.P11, rough sketch. He conducted inquest over the dead body in the presence of witnesses and prepared Ex.P12, inquest report. He seized incriminating materials and examined the witnesses. He took photographs of the dead body as well as the scene through P.W.7, photographer. He sent the dead body for postmortem. https://hcservices.ecourts.gov.in/hcservices/ (e) P.W.2, Doctor conducted autopsy over the dead body and found injuries on the head, right neck, right cheek and throat. He opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained by her. (f) In the meantime, when P.W.5, Councillor was present in her house at 7.00 p.m. on 8.9.2004, the accused appeared before her and informed that he threw grinding stone on his wife due to family feud. (g) Thereafter, the accused appeared before P.W.6, Village Administrative Officer on 9.9.2004 at about 8.00 a.m. and gave a statement that he murdered his wife by throwing grinding stone on her head on 7.9.2004 at about 3.00 a.m. After recording the statement of the accused, P.W.6 took the accused to the police and handed over him to P.W.9 Inspector along with the statement. (h) P.W.9, Investigating Officer, arrested the accused and obtained his confession statement, the admissible portion of which was marked as Ex.P7. P.W.9 seized M.O.3 grinding stone and M.O.4 cycle, produced by the accused. He sent the material objects for chemical examination and obtained chemical analyst's reports. He examined witnesses and after completing investigation, he laid the final report. 4. The case was committed to Court of Sessions and charge was framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charge levelled against the accused, the prosecution examined P.Ws.1 to 9, filed exhibits P1 to P14 and marked material objects M.Os.1 to 6. 5. The accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances that appeared against him, which the accused denied. Neither any witness was examined nor any documentary evidence was produced on his side. 6. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellant as aforementioned. Hence, the present appeal. 7. The learned counsel appearing on behalf of the appellant, inter alia, contends that (i)there are several contradictions in the evidence of P.W.1, who is the mother of the deceased, an interested witness; (ii)P.W.3, minor child was tutored by her grandmother P.W.1 and her evidence is contradictory to other material evidence; and (iii)extra-judicial confession made by the accused to P.W.5 and then to P.W.6 has not been tested and proved to be acceptable as bona fide in trial. https://hcservices.ecourts.gov.in/hcservices/ and accordingly, he seeks acquittal of the appellant/accused. 8. Per contra, learned Additional Public Prosecutor reiterated the reasons that weighed the learned trial Judge to sustain the order of conviction and sentence. 9. We have given careful consideration to the submissions of both sides. 10. The question that arises for our consideration in this appeal is whether the prosecution has brought home the guilt of the appellant/accused beyond reasonable doubts? 11.1. A few facts stand out from the prosecution story. First, the accused and the deceased are husband and wife and the occurrence took place in the house where the deceased was living with her children after she was deserted by her husband. The evidence also reveals that the accused and the deceased loved each other and their marriage took place about 9 years prior to the occurrence and the deceased gave birth to four female children and enraged at this, the accused left his wife and he used to visit his wife occasionally. 11.2. According to the prosecution, on the date of occurrence, there was a wordy quarrel between the accused and the deceased when the accused sought her consent for his second marriage and since the deceased refused to accede to his request, the infuriated accused tied her hand from behind with saree and also put cloth into her mouth and then threw M.O.3 grinding stone on her head and caused her instantaneous death and then, fled the scene on a cycle. 11.3. The entire incident was seen by P.W.3, daughter of the deceased studying 4th standard and when the mother of the deceased, P.W.1 visited the scene next morning, the entire incident came to light, followed by the law being set into motion. 11.4. It is pathetic that the deceased was done to death in a gruesome manner by injuries on her head, and according to the prosecution, the injuries were caused by hitting with a grinding stone and also by beating on face. The doctor, P.W.2, who conducted autopsy also opined that the deceased would appear to have died of shock and haemorrhage due to the injuries on her head. The prosecution thus proved its case to the extent that the deceased died due to the injuries on her head. Though P.W.2 also found injuries on the neck, cheek and throat of the deceased, the prosecution is unable to unravel the same, as it is the prosecution case that the accused beat the deceased with hands and pressed her neck with leg, whereas P.W.2 has categorically stated that the injury on the throat would not have caused by pressing the neck with leg, it would have been caused with a sharp edged weapon, and no such weapon is alleged to have been seized by the prosecution from the accused. https://hcservices.ecourts.gov.in/hcservices/ 11.5. To connect the accused with the crime, the prosecution case mainly revolves in the evidence of P.W.3, minor daughter of the deceased, who, according to the prosecution, was present in the house at the time of occurrence. She is a school-going student. It is her evidence that her father (accused) tied her mother (deceased) keeping the hands behind by using saree and put a cloth in the mouth and then, her father threw grinding stone on her mother's head and beat her mother with hands. According to P.W.3, since her mother was not able to deliver a male child, her father indulged in such act and later, her father left the place on a cycle. It is relevant to note that it is not the evidence of P.W.3 that she raised alarm on seeing her father beating her mother, which a normal daughter would have done, and according to her, after the incident, she went asleep and in the morning, P.W.1 came to scene and brought the incident to light. Further, according to P.W.3, after taking food, she was lying awaken, when the occurrence took place, whereas the charge against the accused is that the accused and the deceased, on the date of occurrence, at early night, shared the bed and later, just before dawn, when the accused again called her to have sex, it was refused by the deceased, resulting in the commission of crime. In cross examination, P.W.3 has stated that she went asleep after taking food at about 7.00 p.m. and woke up only after her grandmother called her. She has also stated that she deposed in the Court as tutored by her grandmother. A reading of the evidence of P.W.3 itself shows that it is unsafe to believe her. However, the trial Court picked certain sentences from the evidence of P.W.3 and proceeded to come to the conclusion that the accused committed the crime. 11.6. The trial Court has rejected the above contradictions in the evidence of P.W.3, when pointed out by the learned counsel for the accused by supposing that P.W.3 was answering such questions without understanding the same as the questions were put in such a fashion. But, the finding of the trial Court is unacceptable, particularly when it had proceeded to record the evidence of P.W.3 after satisfying itself that P.W.3 understood questions posed to her properly. Further, the trial Court, being satisfied that P.W.3 narrated the attack by the accused cogently, rejected the argument of the defence that P.W.3 would not have awaken at 3.00 a.m. as she had admittedly slept after taking food at 7.00 p.m. Though the defence pointed out that the prosecution failed to prove a part of charge that the deceased did not accede to the request of the accused for having sex for the second time and hence, the incident happened, the trial Court rejected the same on the ground that the motive of contracting second marriage stands proved by the evidence which itself establishes the motive. But, it is expected of the prosecution to let in evidence to prove the charge levelled against the accused and if there is any deviation of evidence or a doubt arises in the evidence, the benefit of the same must go in favour of the accused. The trial Court has therefore miserably failed to appreciate the evidence of P.W.3 in proper perspective. https://hcservices.ecourts.gov.in/hcservices/ 12. Eschewing the evidence of P.W.3, the other witnesses linking the accused with the crime are P.Ws.1, 5 and 6. 13.1. Apropos P.W.1, her evidence proceeds to show that there were frequent quarrels between the accused and the deceased regarding his second marriage. She has deposed that on the date of occurrence at 8.30 p.m., she had seen off her daughter who left for her house and next morning when P.W.1 visited her daughter, she found her daughter dead. 13.2. Even though P.W.1 was examined to prove the frequent quarrel between the husband and wife, in her cross examination, she has admitted that they entered quarrel about 3 months prior to the occurrence and thereafter, she did not see them fighting with each other. It is not the evidence of P.W.1 that she saw the accused in the company of deceased on the date of occurrence, just prior to the incident. 13.3. According to P.W.1, one Mala informed her that there was a quarrel between the accused and the deceased on the date of occurrence. But, her cross examination proceeds to show that the said Mala was watching TV in the house of deceased and when the accused and the deceased started wordy quarrel she left that place. Therefore, the evidence of P.W.1 is also not helpful to the prosecution to prove the guilt of the accused. 14. Then, we left with the evidence of P.Ws.5 and 6. They were examined to establish that the accused appeared before them and made a confession as to his guilt. 15.1. According to P.W.5, on 8.9.2004 at about 7.00 p.m., when she was at her house, the accused came and informed her that there was misunderstanding between his wife and himself and hence, he threw a stone on his wife and caused her death. P.W.5 however admits that the accused was not known to her earlier. In such a case, it is not clear as to how the accused chose P.W.5 to confess his guilt. 15.2. Regarding P.W.6, he was the Village Administrative Officer. He has deposed that on 9.9.2004 at about 8.00 a.m., the accused appeared before him and admitted the guilt and recorded his statement and handed over the accused to the police along with the statement. P.W.9 Inspector also admitted that it is P.W.6 who has produced the accused. 15.3. The trial Court proceeded to believe the evidence of P.W.6 on the basis that there is no enmity between the accused and P.W.6 and hence, P.W.6 is an independent witness. The trial Court however forgot the fact that the statement alleged to have been recorded by P.W.6 was not produced before the Court by the prosecution. P.W.9 https://hcservices.ecourts.gov.in/hcservices/ Inspector in his cross examination has admitted that he did not send the statement and he could not say reason for the same. Therefore P.Ws.5 and 6 are also not helpful to the prosecution. 16. The other circumstance that goes in favour of the accused is that Ex.P1, complaint, according to the prosecution, was recorded by the police at 9.00 a.m. on 8.9.2004, whereas, it is the evidence of P.W.1 that she went to police station and lodged the complaint by 10.00 a.m. Further, it is deducible from her evidence that the police station is situate in one kilometre distance from the scene and according to P.W.1, she saw her daughter dead at about 6.30 a.m. and then, she went to the police station and lodged the complaint. In her cross examination, she has first admitted that the police obtained her statement at her home and then changed her stand and stated that she went to the police station by 6.30 a.m. where the police recorded her statement. Further, the photographer P.W.7 has stated that he took photographs of the deceased as well as the scene at about 7.30 a.m. on 8.9.2004. He admitted in his cross that when he was taking photos, police were present and at the instance of police, he took photographs. There is, therefore, a doubt whether Ex.P1 came into existence in the manner as alleged by the prosecution. 17. The other circumstance that shakes the prosecution case is that P.W.9 investigating officer in his cross examination has admitted that he had requested the learned Judicial Magistrate, Porur to record the confession statement of the accused. But, there is no such confession statement produced before the Court. In such circumstance, the suggestion of the defence that since the accused stated that it was one Murugan who murdered the deceased, the said statement was not produced before the Court cannot be brushed aside. 18. All the above circumstances go to show that the trial Court has not appreciated the evidence in proper perspective and we are of the opinion that the points raised by the leaned counsel for the appellant do merit acceptance. We therefore hold that the prosecution failed to prove the guilt of the accused beyond all reasonable doubts. 19. In fine, the appeal is allowed. The conviction and sentence imposed on the appellant by judgment dated 17.1.2006 made in S.C.No.50 of 2005 on the file of Sessions Court, Thiruvannamalai are set aside. The appellant is acquitted of the charge. The bail bond executed by the appellant shall stand cancelled. The fine amount if any paid by the appellant shall be refunded. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ kpl To 1. THE DISTRICT & SESSIONS JUDGE THIRUVANNAMALAI 2. THE PUBLIC PROSEUCTOR HIGH COURT, MADRAS 3. THE JUDICIAL MAGISTRATE ARANI 4. THE CHIEF JUDICIAL MAGISTRATE THIRUVANNAMALAI 5. THE SUPERINTENDENT CENTRAL PRISON VELLORE 6. THE INSPECTOR OF POLICE, ARANI POLICE STATION,ARANI. 7. THE DISTRICT COLLECTOR THIRUVANNAMALAI 8. THE DIRECTOR GENERAL OF POLICE CHENNAI – 4 + 1 CC To Mr.S.Samuel Rajapandian, Advocate SR NO.29869 Crl.A.No.928 of 2006. SCD(CO) SRA(07/07/2008) https://hcservices.ecourts.gov.in/hcservices/