Bail Slip The Appellants/Accused No.1 & 2 namely,1.Prasanna,2.Sambandam were directed to be released on Bail as per order of this Court dt.1.4.08 and made in Crl.M.P.No.1/08 in CA.No.163/08 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.163 of 2008 1.Prasanna 2.Sambandam .. Appellants vs State by Inspector of Police Puduchatram Police Station Cuddalore District (Crime No.75/07) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District Sessions Judge (Fast Track Court No.I), Chidambaram, Cuddalore District, in S.C.No.319 of 2007 dated 8.1.2008. For Appellants : Mr.Anantha Narayanan for Mr.S.Sasikumar For Respondent : Mr.N.R.Elango, Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.I, Chidambaram, made in S.C.No.319 of 2007 whereby the accused/appellants stood charged, tried, found guilty under Sec.302 of IPC, a charge of murder, and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 was a resident of Thanvanadiyanpallam, Vallam. P.W.2 is his wife. The brother of P.W.1 by name Vaidyanathan, a bachelor, was living with them. He developed illicit intimacy with P.W.3 who was already married and deserted by her husband. On 1.4.2007 at about 9.30 P.M., when Vaidyanathan was staying with P.W.3, A-1 and A- 2 came there and asked him to come to a music party. At that time, the deceased was in a drunken mood. When he refused to come, he was forcibly taken by both the accused. When P.Ws.4, 5 and 6 who knew both the deceased and the accused, were walking across Thachampalayam Railway Gate, they found the accused and the deceased quarrelling https://hcservices.ecourts.gov.in/hcservices/ with each other. A-1 was also having a big black stone in his hand at the time of the said quarrel. The Village Administrative Officer of Periapattu Village, examined as P.W.7, on information through his Assistant, proceeded to the said railway gate on the morning hours of 2.4.2007 and found the dead body of Vaidyanathan. P.W.1 on coming to know that his brother's dead body was found near the railway gate, proceeded there, and after seeing the dead body of his brother, he proceeded to the respondent police station and gave a complaint, Ex.P1, to P.W.15, the Inspector of Police. On the strength of the said complaint, a case was registered in Crime No.75 of 2007 under Sec.302 IPC. The printed FIR, Ex.P18, along with Ex.P1 the report, were despatched to the concerned Judicial Magistrate's Court. (b) The case was taken up for investigation by P.W.15, who proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P19. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P20, the inquest report. He also recovered the material objects from the place of occurrence. Both the accused were arrested on the day at about 3.00 P.M. Both came forward to give confessional statements voluntarily. The same were recorded. The admissible part of the confessional statement of A-1 is marked as Ex.P21 and that of A-2 is Ex.P22. The accused produced M.O.7, a big black stone, which was recovered by the Investigator under a mahazar, Ex.P23. Then the dead body was sent to the Government Hospital for the purpose of autopsy along with a requisition, Ex.P11. (c) P.W.13, the Civil Assistant Surgeon, attached to the Government District Head Quarters Hospital, Cuddalore, on receipt of the said requisition conducted autopsy on the dead body of Vaidyanathan and has issued a postmortem certificate Ex.P9. He has opined under Ex.P10 that the deceased would have died of head injury and poly trauma. (d) Continuing the investigation, the Investigator recorded the statements of the witnesses. All the material objects recovered from the place of occurrence and from the dead body and M.O.7 stone were sent for chemical analysis. Accordingly they were subjected to analysis by the Forensic Sciences Department, and Exs.P7 and P8 are the chemical analyst's report and serologist's report respectively. On completion of the investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 23 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellants guilty and awarded punishment which is the subject matter of challenge before this Court. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.Anantha Narayanan would submit that in the instant case, the prosecution had no direct evidence to offer before the trial Court; that it rested its case on the circumstantial evidence; that P.W.3 with whom the deceased had illicit intimacy was examined as to the last seen theory; that she has deposed that the deceased was in a drunken mood and that when he was invited by the accused to go to the music party, he refused; but he was forcibly taken; that her evidence should have been rejected for the simple reason that there is a vital discrepancy as to the time when the deceased was taken by the accused; that apart from that, even when she came to know about the death of Vaidyanathan, the next morning, she has not informed to anybody that both the accused took the deceased forcibly the previous night; that the said conduct of the witness would cast a doubt whether such an incident could have taken place the previous day; that though the Investigator claimed that the statement of P.W.3 was recorded on 2.4.2007, it has reached the Court only on 10.6.2007, after a long lapse of two months; and that this would go to show that the statement of P.W.3 could not have been recorded as claimed by the Investigator. 5.Added further the learned Counsel that P.Ws.4 to 6 were examined by the prosecution to speak that they saw the deceased in the company of the accused at or about the time near the railway gate where the dead body was found the next morning; that out of these three witnesses, P.Ws.4 and 6 have turned hostile; that much reliance was placed by the prosecution on the evidence of P.W.5 and the trial Court has accepted the same; that the evidence of P.W.5 should have been rejected for three reasons; that firstly, at one stage he has stated that he saw the deceased in the company of the accused when he proceeded to the drama, and at the other stage, he has stated that he saw him in their company when he was returning from the drama; that secondly, it is to be pointed out that he has also further deposed that after witnessing the drama, he slept there and came only the next morning, and thus it is highly doubtful whether he would have seen the deceased in the company of the accused; that thirdly, he has claimed that he is a good friend of P.W.1; that had he seen the deceased and the accused quarreling with each other and that too, A-1 having a big stone in his hand, he would have definitely intervened to question or pacify the situation, but not done so; that it is pertinent to point out that he has claimed that he saw the deceased in the company of the accused at about 10.00 P.M.; that in such circumstances, one would naturally expect a person like P.W.5 to intervene, and thus it is highly doubtful whether P.W.5 could have seen the deceased in the company of the accused; that further even after coming to know that the dead body of the deceased was actually found near the railway gate, where the witness claimed to have seen him along with the accused, the previous night, he has not whispered to anybody about the same till he was examined by the police the next day; that apart from that, though the Investigator claimed that the statement of P.W.5 was recorded on 3.4.2007, it has reached the Court only on 5.7.2007; that this would also go to show that P.W.5 was only a planted witness; that barring this evidence, the prosecution had no evidence to offer and thus the prosecution has not proved its case; but the trial Court relying on the above pieces of evidence which were not worth mentioning, has erroneously found the https://hcservices.ecourts.gov.in/hcservices/ appellants/accused guilty, and hence they are entitled for acquittal in the hands of this Court. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.It is not in controversy that the dead body of one Vaidyanathan, the brother of P.W.1, was found near Thachampalayam railway gate. Following the inquest made by the Investigator, P.W.15, the dead body was subjected to postmortem by P.W.13, the Doctor, who has given a categorical opinion that the deceased died out of head injury. The fact that Vaidyanathan met the homicidal death was never challenged by the appellants before the trial Court, and hence it could be recorded so. 8.In order to substantiate the charge levelled against the appellants that on the night of 1.4.2007, both the accused forcibly took the deceased who was in a drunken mood, and caused his death by strangulation and fled away after leaving the dead body near Thachampalayam railway gate, the prosecution before the trial Court had no direct evidence to offer. It relied upon mainly two circumstances. The first circumstance was that the deceased was staying with P.W.3 on the night, and he was in a drunken mood, and at that time, A-1 and A-2 came there and invited him to come to the music party; but, the deceased was not ready to go, and even then, they forcibly took him, and on the said night, the occurrence has taken place. The evidence of P.W.3 as to the last seen theory was found to be shaky. Admittedly, during the relevant time, the deceased was living with her. According to her, A-1 and A-2 came to the house on the night hours and took the deceased forcibly while he was in a drunken mood, to witness the music party. The next morning P.W.3 came to know that the dead body of Vaidyanathan was found near the railway gate. One would ordinarily expect a lady like P.W.3 who was really kept by Vaidyanathan as a concubine during the relevant time, to tell others about the visit of A-1 and A-2 and that they took the deceased forcibly the previous night, but has not whispered the same to anybody. She has categorically deposed that she has not informed to anybody till she was examined by the police. Though the Investigator claimed that she was examined on 2.4.2007, her statement reached the Court on 10.6.2007. Taking into account the conduct of P.W.3, her evidence as to the last seen theory becomes doubtful. 9.The other piece of evidence which was projected by the prosecution before the trial Court was through P.W.5. Though three witnesses were examined to speak that the deceased was found in the company of A-1 and A-2 near the railway gate at or about the time of occurrence, P.Ws.4 and 6 have turned hostile. The only witness who spoke about that fact was P.W.5. This Court is afraid whether it could accept the evidence of P.W.5 for the following reasons. 10.P.W.5 has claimed that he is a good friend of P.W.1. According to him, he found the deceased in the company of A-1 and A- 2 near the railway gate and at that time, he also witnessed a quarrel, and A-1 was also having a big black stone in hand. Under such circumstances, one would naturally expect the witness to https://hcservices.ecourts.gov.in/hcservices/ intervene to pacify the situation or at least to question about the quarrel, but he did not do so. It becomes all the more doubtful that even after coming to know that the dead body of Vaidyanathan was lying near the railway gate and even after participating in the funeral, he did not inform to anybody. But, according to the witness, he spelt about the same for the first time when he was examined by the police. Under the stated circumstances, the conduct of P.W.5 would cast a doubt whether he would have seen the deceased in the company of A-1 and A-2. The Investigator has claimed that P.W.5 was examined on 3.4.2007; but, the statement has reached the Court on 5.7.2007 after a long interval. It also strengthens the doubt. In such circumstances, this Court is of the considered opinion that no evidentiary value could be attached to the evidence projected through P.Ws.3 and 5. As rightly pointed out by the learned Counsel for the appellants, barring these pieces of evidence, the prosecution had no evidence to offer. Even the blood group found in the material objects recovered from the place of occurrence and the stone which was recovered, did not tally. Hence it cannot be stated that the prosecution has proved the case beyond reasonable doubt. Placing reliance on the above two pieces of evidence, sustaining a conviction would be highly unsafe. Therefore, the judgment of the trial Court has got to be set aside, and the appellants are entitled for acquittal. 11.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellants are acquitted of the charge levelled against them. The bail bonds executed by them shall stand terminated. The fine amounts if any paid by them will be refunded to them. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar nsv/ To: 1.The District Munsif cum Judicial Magistrate, Parangipettai, Cuddalore District. 2.-do- Thro'The Chief Judicial Magistrate, Cuddalore. 3.The Additional Sessions Judge Fast Track Court No.I Chidambaram, Cuddalore District 4.-do- Thro'The Principal Sessions Judge, Cuddalore. 5.The Superintendent, Central Prison, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 6.The Inspector of Police Puduchatram Police Station Cuddalore District (Crime No.75/07) 7.The District Collector, Cuddalore. 8.The Director General of Police, Chennai. 9.The Public Prosecutor, High Court, Madras. + 1 cc to Mr.S.Sasikumar,Advocate,Sr.24161 Crl.A No.163 of 2008 SGL(CO) EM/6.7.09 https://hcservices.ecourts.gov.in/hcservices/