Bail Slip The Appellant/ Accused herein was enlarged on bail by order of this Court dated 8.12.2006 and made in Crl.M.P.No.1/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 17.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No. 723 OF 2006 Mysudha .. Appellant/Accused Vs State by the Inspector of Police Mel Chengam Police Station Melchengam, Tiruvannamalai District. [Crime No.110/2002] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., against the Judgment of the learned District and Sessions Judge, Tiruvannamalai District in SC.No.112 of 2003 dated 31.07.2006. For Appellant : Mr.K.S.Rajagopalan For Respondent : Mr.N.R.Elango,APP JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The sole accused Mysudha has come forward with this appeal challenging his conviction and sentence passed by the learned District and Sessions Judge, Tiruvannamalai, in the judgment dated 31.07.2006 made in SC.No.112 of 2003, convicting the appellant for the offence under section 302 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.10,000/- in default to undergo one year rigorous imprisonment and convicting him under section 307 IPC and sentencing him to undergo 7 years rigorous imprisonment and imposing a fine of Rs.10,000/- in default https://hcservices.ecourts.gov.in/hcservices/ to undergo one year rigorous imprisonment and convicting him under section 25[1][b] of the Indian Arms Act and sentencing him to undergo one year rigorous imprisonment and also imposing a fine of Rs.1,000/- carrying with the default sentence of one year rigorous imprisonment. 2.The accused faced the trial under the following back drop:- [a] P.W.1 is the brother of father-in-law of the accused. P.W.4 is also the brother of father-in-law of the accused. P.W.5 is the wife of the deceased. The accused as well as P.Ws.1,3,4 and 5 were the residents of the same village, viz., Kattamaduvu. The accused and his wife were living in a joint family along with the parents of the accused. The wife of the accused, one Prema was compelling the accused to set up a separate family and as a result, there were frequent quarrels between the accused and his wife Prema. In view of the frequent quarrels, Prema, the wife of the accused, left the marital home and she was residing in her parental home. Six months prior to the occurrence, the in-laws of the accused and the important village people went to the house and requested the accused and his father to set up a separate family and as such, there were strained feelings between the two families. [b] At 8.30 p.m., on the date of occurrence, i.e., 27.05.2002, as the father-in-law of the accused, one Jamila, P.Ws.1,3,4 and the deceased Manivannan heard that the accused assaulted his wife, Prema, they went to the house of the accused and questioned the conduct of the accused. The accused went inside his house and took a country gun and shot the above said persons who came there for Panchayat. As a result, P.W.1 and the deceased sustained injuries. The deceased became unconscious. P.W.4 took the injured deceased to the Government Hospital, Tiruvannamalai. [c] As per the evidence of P.W.11, the doctor attached to the Government Hospital, Tiruvannamalai, he examined the deceased on 27.05.2002 at 11.30 p.m. and found the following injuries:- "1.Lacerated wound over right side of fore head 2x1/2x1/2 with contusion around it 4x4 cm. 2.Bleeding from right ear more present." Ex.P.13 is the Accident Register. [d] On 28.05.2002, P.W.1 went to the office of the Village Administrative Officer, P.W.2 and gave a report, Ex.P.1 which was recorded by P.W.2. One Mahendran also attested the report, Ex.P.1. After recording Ex.P.1, P.W.1 went to Mel Chengam Police Station on 28.05.2002 and handed over the report, Ex.P.1 to P.W.10, the Sub- Inspector of Police. P.W.10 registered the case in Crime No.110 of 2002 under section 307 IPC read with 25[1][b][a] of the Indian Arms Act. Ex.P.12 is the Express First Information Report [FIR]. He https://hcservices.ecourts.gov.in/hcservices/ sent the FIR to the higher police officials and to the Court. [e] P.W.13, the Inspector of Police received the FIR on 28.05.2002 at 9.30 p.m. and took up the investigation. He went to the scene of occurrence and prepared the Observation Mahazar-Ex.P.2 and the rough sketch-Ex.P.15. He examined P.Ws.1,2 and others. [f] The doctor, P.W.12, attached to the Government General Hospital, Chennai, examined the deceased referred by the Government Hospital, Tiruvannamalai on 28.05.2002 at 4.15 a.m. Ex.P.14 is the Accident Register issued by her. Inspite of the treatment the deceased died on 28.05.2002 at 7.00 a.m. [g] P.W.13, the Inspector of Police received the death intimation as per Ex.P.16 and thereafter, altered the offence to one under section 302 IPC and Ex.P.17 is the altered FIR. He held inquest on the dead body of the deceased on 29.05.2002 from 8.00 a.m. to 11.00 a.m. Ex.P.18 is the Inquest Report. He has also made arrangements to take photographs. M.O.4 series are the photographs and M.O.5 series are the negatives of the photographs. He sent the body for postmortem. [h] The doctor, P.W.8, attached to Madras Medical College Hospital conducted the postmortem on the dead body of the deceased on 30.05.2002 at 10.55 a.m. He found the following injuries:- "EXTERNAL INJURIES:- 1]Abrasions:- a]over outer aspect of upper part of right thigh 1x1 cm; b]on front of lower part of left knee 1x0.5 cm; c]over inner aspect of upper part of left leg 1x0.5 cm; d]over outer aspect of right elbow 0.5x0.5 cm; and e]over back of right shoulder 3x2 cm. 2]An oval shaped punctured wound 0.8x0.7cm over right side of face 6cms in front of right ear lobe and 1cm away from the outer end of right eyebrow. The margins of the wound found irregular contused and inverted [Entry wound]." Ex.P.7 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of gun shot injury to the head. Ex.P.10 is the Viscera report. [i] The doctor, P.W.6, attached to the Government Hospital, Chengam, examined P.W.1 on 29.05.2002 at 9.15 a.m. and he found the following injuries:- https://hcservices.ecourts.gov.in/hcservices/ "4x21/2cmxskin deep burnt injury over right lateral aspect of buttock, edges are black in colour, charred bed of injury red in colour." Ex.P.5 is the Wound Certificate issued by him wherein he has opined that the injury sustained by P.W.1 is simple in nature. [j] P.W.13, on 31.05.2002, arrested the accused at Chengam Bus Stand. In pursuance of the admissible portion of the confession under Ex.P.3, he recovered M.O.1-Country gun under Ex.P.4. [k] P.W.14, the Inspector of Police, took up further investigation and examined the doctors, P.Ws.8,11,12 and others. On 25.01.2003, he examined P.W.1 and recorded his statement. After receiving the Postmortem Certificate-Ex.P.7, Serologist Report- Ex.P.11 and after completion of investigation, filed the charge sheet against the accused on 04.03.2003 under sections 302,307 IPC and 25[1][b] of the Indian Arms Act. 3. The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 14, filed Ex.Ps.1 to 20 and marked M.Os.1 to 5. 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 denied each and every circumstance as contrary to the facts and stated that he has been falsely implicated in the case. The accused has neither chosen to examine any witness on his side nor marked any documents. 5. Mr.K.S.Rajagopalan, learned counsel for the appellant contended that the prosecution has miserably failed to establish the guilt of the accused by adducing clear and consistent evidence. It is contended that the alleged eyewitnesses P.Ws.1,3,4 and 5 have not supported the case of the prosecution and they turned hostile. The learned counsel for the appellant would further submit that P.W.1 also disowned his report Ex.P.1 and stated in his cross- examination that the police obtained his signature in a blank paper and the signature alone is marked as Ex.P.1 in this case. It is further contended that the medical evidence belies the case of the prosecution. The doctor P.W.11 stated that the deceased was brought by P.W.4 and it was informed to him that the deceased was assaulted by four known persons with stick and stone. It is submitted that the injury sustained by the deceased as per Ex.P.13- Accident Register is only a lacerated wound on the forehead with a contusion and there is absolutely no gun shot injuries found by the https://hcservices.ecourts.gov.in/hcservices/ doctor, P.W.11 who has examined the deceased at the earliest point of time. The learned counsel would further submit that as per Ex.P.7-Postmortem Certificate, it is opined by the doctor that the deceased died due to gun shot injury on the head and as such, the opinion is contrary to the injury sustained by the deceased as per the Accident Register-Ex.P.13 and there is no explanation from the prosecution in respect of this inconsistency between the medical evidence. It is further contended that the prosecution has not proved that M.O.1-country gun was exclusively possessed by the accused and the prosecution also not proved the recovery of M.O.1 by adducing reliable evidence. It is pointed out by the learned counsel for the appellant that according to P.W.1-the Village Administrative Officer while he went near the house of Devaraj, the father of the accused, the gun-M.O.1 was produced by the accused and he has not stated that it was concealed by the accused. Therefore, it is submitted by the learned counsel for the appellant that the prosecution case suffers from several serious infirmities. 6. Per contra, Mr.N.R.Elango, the learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent circumstances. It is contended that though the eyewitnesses turned hostile, the medical evidence through the doctor P.W.8, clearly shows that the deceased died due to gun shot injury. It is pointed out that from the body of the deceased, pellets were removed. It is further submitted that the prosecution also recovered M.O.1-country gun in pursuance of the admissible portion of the confession of the accused and the recovery of M.O.1 was proved by the prosecution through the evidence of P.W.1 and the investigating officer, P.W.13. Therefore, it is submitted that the prosecution has proved its case to the effect that the deceased died due to gun shot injuries at the hands of the accused. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction. 8. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1,3,4 and 5 but the fact remains that all the above said eyewitnesses have given a total go-by to their earlier version and they have turned hostile. It is well settled that the evidence of hostile witnesses cannot be rejected in toto and any portion of their evidence, either in favour of the prosecution or in favour of the defence, could be relied on. But, in this case their entire evidence is against the prosecution as they have not implicated the accused in any manner. It is pertinent to be noted that P.W.5 who is none else than the wife of the deceased has also not supported the prosecution case and turned https://hcservices.ecourts.gov.in/hcservices/ hostile. P.W.1 who is the author of the report, Ex.P.1 also disowned his report and stated that the police obtained signature in blank paper and the signature alone is marked as Ex.P.1. 9. Excluding the evidence of the eyewitnesses P.Ws.1,3,4 and 5 as they have turned hostile, we are left with the medical evidence alone in this case through the evidence of the doctors P.Ws.8,11 and 12. It is curious to note that as per the earliest statement made to the doctor P.W.11 who has examined the deceased at 11.30 p.m. on 27.05.2002, P.W.4 had stated to him that the deceased was assaulted by four known persons with stick and stone. A perusal of the Accident Register Ex.P.13 also reflects the same statement of assaulting the deceased with stick and stone. A perusal of Ex.P.13 also discloses that the deceased has not sustained any gun shot injury and only a lacerated wound was found by the doctor-P.W.11 on the forehead of the deceased with a contusion. A perusal of Ex.P.14, another Accident Register issued in respect of the deceased by the doctor-P.W.12 shows that the doctor was informed that the deceased was assaulted by two known persons, viz., the accused and his father Devaraj. There is no mention about the weapon used by the accused in the Accident Register-Ex.P.14. A perusal of Ex.P.7-Postmortem Certificate discloses certain gun shot injuries. But the prosecution has not explained about the inconsistency between the Postmortem Certificate and the Accident Registers as stated above. 10. As already pointed out, the entire prosecution case suffers from serious infirmities and inherent improbabilities. All the eyewitnesses have turned hostile and there is absolutely not even a single incriminating circumstance put forward by the prosecution to implicate the accused with the alleged crime. 11. The Hon'ble Apex Court has held in KRISHNAN VS. STATE REPRESENTED BY INSPECTOR OF POLICE reported in 2008 [4] SUPREME 25 that:- "In the absence of any cogent, believable and satisfactory evidence, an accused cannot be held guilty of murder only on hypothesis and suspicion". 12. Therefore, for the aforesaid reasons, we are constrained to come to the inevitable conclusion to the effect that the impugned Judgment of conviction and sentence is unsustainable in law and accordingly, the conviction and sentence passed in the judgment dated 31.07.2006 by the learned District and Sessions Judge, Tiruvannamalai in SC.No.112/2003 is set aside and the criminal appeal is allowed. https://hcservices.ecourts.gov.in/hcservices/ 17.It is reported that the appellant/accused is on bail. Hence,the bail bond, if any, executed by him, shall stand terminated. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ap To 1. The District and Sessions Judge, Tiruvannamalai, Tiruvannamalai District. 2. The Inspector of Police Melchengam Police Station, Melchengam, Tiruvannamalai District. 3. The Public Prosecutor High Court, Chennai. 4. The Judicial Magistrate,Chengam 5. do through the Chief Judicial Magistrate, Thiruvannamalai 6. The Superintendent Central Prison, Vellore. 7. The Commissioner of Police, Chennai 1 cc to Mr.L. Mahendran, Advocate, Sr. 30761 Crl.A.No.723/2006 SSV (CO) kk 30/6 https://hcservices.ecourts.gov.in/hcservices/