Bail Slip The Appellants/Accused 1 & 2 were directed to be released on bail as per order of this Court dated 8.9.2006 and made in Crl.M.P.No.4128/2006 in Crl.A.No.220/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.07.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.220 of 2006 1.Mysooran @ Kandasamy 2.Kala @ Kalamani .. Appellants/Accused 1 and 2 Vs. STATE rep. By Inspector of Police, Omalur Police Station, Salem District. (Cr.No.150 of 2000) .. Respondent/Complainant * * * Prayer : Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure against the order of Judgment passed by the learned Principal Sessions Judge, Salem, in S.C.No.354 of 2004 dated 17.06.2005. * * * For Appellant : Mr.G.Balasubramanian for M/s.Arulmudi & Co., 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.) The challenge in this appeal is to the judgment of the learned Principal Sessions Judge, Salem, dated 17.06.2005 made in S.C.No.354 of 2004 convicting the appellants, A-1 and A-2, under Section 341 IPC and sentencing them to undergo one month simple imprisonment and convicting them under Sections 302 r/w 34 IPC and sentencing them to https://hcservices.ecourts.gov.in/hcservices/ undergo life imprisonment and also imposing a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment and also convicting them under Section 506 (ii) IPC and sentencing them to undergo three years rigorous imprisonment. 2. The facts of the case as projected by the prosecution are as follows : (i) A-2 is the wife of the deceased. A-1 is the paramour of A-2 and 'Pangali' of the deceased. P.W.1 is the son of the deceased. The deceased is the uncle of P.W.2. A-1 and the deceased were having land at Senkaradu village. P.W.2 was also having land in the same place. As A-1 used to come to his land frequently, he developed illicit intimacy with A-2, wife of the deceased. The deceased warned A-1. Thereafter, A-2 quarreled with the deceased and left for her parental house 2-3 times prior to the occurrence and the deceased used to pacify her and bring her back to his house. (ii) On the date of occurrence, i.e., on 31.01.2000 at 7.30 p.m., P.W.2 went to his land and saw A-1 cutting a tender coconut and pouring some substance contained in a white tin. At that time, the deceased was lying in his hut. A-2 gave the tender coconut to the deceased. After drinking the tender coconut, the deceased vomited and felt giddiness and laid down on the cot. At that time, A-2 pressed the nose and neck of the deceased. A-1 squeezed the testicles of the deceased and the deceased died. P.W.1, who was witnessing the occurrence frightened and came near P.W.2. P.W.2 questioned the conduct of A-1. A-1 threatened P.Ws.1 and 2 with dire consequences. Having frightened, both P.Ws.1 and 2 left for their house. (iii) P.W.1 went to the office of P.W.3, Village Administrative Officer, at 9.00 a.m. on 01.02.2000 and gave a written report, Ex.P.4. P.W.3 came to the scene of occurrence along with P.W.1 and his Assistant. Thereafter, he prepared a report, Ex.P.5 and took P.W.1 to Omalur Police Station. (iv) P.W.9, Inspector of Police, Omalur Police Station, received the report, Ex.P.5 given by P.W.3, VAO, along with the statement recorded from P.W.1 on 01.02.2000 at 11.00 a.m. He registered the case in Crime No.150 of 2000 for the offence under Section 302 IPC. Ex.P.15 is the Express First Information Report. He sent the First Information Report to the higher police officials and to the Magistrate Court. (v) P.W.9 took up investigation and went to the scene of occurrence. He prepared the Observation mahazar, Ex.P.8 and the rough sketch, Ex.P.16 in the presence of witnesses. He seized M.O.2, Koduval, M.O.3, tender coconut without water from the scene of occurrence under Ex.P.9, Mahazar. He held inquest on the dead body of the deceased from 1.00 p.m. to 5.00 p.m. Ex.P.17 is the inquest report. He sent the body for post-mortem. https://hcservices.ecourts.gov.in/hcservices/ (vi) The Doctor, P.W.8, attached to the Government Hospital, Omalur, conducted post-mortem on 02.02.2000 at 9.00 a.m. as per the requisition under Ex.P.10 and found the following injuries : (1)Skin peeled off in the right scrotum, testis exposed, 1" X 1". (2)A contusion on the left scrotum with inside an abrasion 1/4" X 1/4". (3)A contusion on the centre of neck extending from right to left 5" X 5". (4)A contusion on the right cheek just below ear. Thorax : Lungs : 450 gms (right) ; 400 gms (left) ; Heart : 150 gms empty ; Liver – 1000 gms ; Stomach – 3 ml of brown fluid ; Intestines : Preserved ; spleen – 10 gms. Bladder ; Skull – opened – no fracture . No brain injury ; Ex.P.11 is the Post-mortem certificate. The Doctor received the Viscera report, Ex.P.12, Hyoid bone report, Ex.P.13 and gave his final opinion under Ex.P.14 to the effect that the deceased would appear to have died of poisonous effects of Monocrotophos which is a poisonous organophosphorous compound. (vii) P.W.9, in continuation of his investigation, searched for the accused and arrested A-1 and A-2 on 02.02.2000 near Thekampatti bus stop. In pursuance of the admissible portion of the confession of A-1 under Ex.P.6, he recovered M.O.1, Monocrotophos box produced from the house of the deceased as pointed out by A-2. Thereafter, A-1 and A-2 were remanded to judicial custody through the Court. He examined the other witnesses and recorded their statements. He recovered the cloths of the deceased, M.Os.4 to 6 under Form 95. He gave the requisition to the Magistrate for recording the statements of P.Ws.1 and 2 under Section 164 Cr.P.C. On 28.02.2000, the statements of P.Ws.1 and 2 were recorded under Section 164 Cr.P.C. by the learned Judicial Magistrate No.I, Mettur. On 29.03.2000, P.W.9 examined the Doctor, P.W.8, who has conducted post-mortem. He received the post-mortem certificate, Ex.P.11, Viscera report, Ex.P.12, Hyoid report, Ex.P.13 and Ex.P.14, final opinion. After completion of investigation, P.W.9 filed the charge sheet against A-1 and A-2 for the offence under Sections 341, 302 r/w 34 IPC. 3. The prosecution in order to prove its case examined P.Ws.1 to 9, marked Exs.P.1 to P.23 and M.Os.1 to 6. 4. When the accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them through the evidence adduced by the prosecution, both the accused have come forward with the version of total denial. They have not chosen to examine any witness on their side. 5. The learned counsel for the appellants contended that the https://hcservices.ecourts.gov.in/hcservices/ prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt by adducing clear and consistent evidence. It is contended that the evidence of the alleged eye-witnesses, P.Ws.1 and 2, is unbelievable and unacceptable. It is contended that P.W.1, son of the deceased, has not supported the prosecution as he has not implicated A-1 and A-2 and P.W.1 has disowned his report said to have been given to the Village Administrative Officer, P.W.3. It is pointed out by the learned counsel for the appellants that P.W.1 has implicated only A-1 in his statement recorded under Section 164 Cr.P.C. by the Magistrate and he has admitted in his cross- examination that only due to the threat by the police, he has given such a statement before the Magistrate implicating A-1. The learned counsel would further submit that the other eye-witness, P.W.2, has stated in his statement recorded under Section 164 Cr.P.C. to the effect that he was not aware as to how the deceased died and he received the information about the death of the deceased through A-2 and therefore, the present version of P.W.2 before the Court is unbelievable and unacceptable. It is contended that P.W.2 has admitted that he has not informed anyone though he knew the Village Administrative Officer, P.W.3 nor he has given any report to the police. 6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent evidence. It is contended that though P.W.1 has not supported the prosecution case before the Court, he has implicated the accused in his statement recorded under Section 164 Cr.P.C. before the Magistrate which is marked as Ex.P.1. It is contended that P.W.2, another eye-witness, has implicated A-1 and A-2 before the Court though he has not implicated A-1 and A-2 in his statement recorded under Section 164 Cr.P.C. which is marked as Ex.P.3 in this case. The learned Additional Public Prosecutor would further submit that the prosecution version is also corroborated by the medical evidence as the Doctor, P.W.8, gave the opinion to the effect that the deceased appeared to have died of poisonous effects of Monocrotophos which is a poisonous organophosphorous compound. It is contended that M.O.1, white plastic tin containing little Monocrotophos poison, was recovered at the instance of A-1. Therefore, it is submitted that the prosecution has proved its case in all aspects beyond reasonable doubt against the accused. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinized the entire materials available on record and perused the impugned judgment of conviction. 8. The prosecution heavily placed reliance on the evidence of the eye-witnesses, P.Ws.1 and 2. At the outset, we are constrained to state that P.Ws.1 and 2 have not come forward with a clear, consistent and cogent version. The motive put forward by the prosecution is to the effect that there was illicit intimacy between https://hcservices.ecourts.gov.in/hcservices/ A-1 and A-2, wife of the deceased and as a result, both A-1 and A-2 were said to have committed the murder of the deceased. But P.W.1, the son of the deceased, has emphatically denied any illicit intimacy between A-1 and his mother, A-2. The fact remains that P.W.1 has not supported the prosecution case in his evidence before the Court, though he has implicated the accused in his statement recorded under Section 164 Cr.P.C. which is marked as Ex.P.1. It is categorically stated by P.W.1 in his cross-examination that he has given such a statement before the Magistrate only due to the threat by the police. It is curious to note that P.W.1 was not treated as hostile by the prosecution. As far as the other eye-witness, P.W.2 is concerned, he has implicated both A-1 and A-2 during his evidence before the Court. The fact remains that he has not implicated A-1 and A-2 in his statement recorded under Section 164 Cr.P.C. which is marked as Ex.P.3. It is seen that P.W.2 has categorically stated before the learned Magistrate that he is unaware about the occurrence and he was informed about the death of the deceased only by A-2. It is pertinent to be noted that P.W.2 has admitted in his cross- examination that after the occurrence, he has not informed the Village Administrative Officer, P.W.3 though he knew him nor he went to the police station to give any report and his conduct is highly unnatural and abnormal throwing serious doubt about the veracity of his version. Therefore, in view of these infirmities and inconsistencies in the evidence of P.Ws.1 and 2, we are of the considered view that it is most unsafe and hazardous to place reliance on the evidence of P.Ws.1 and 2. 9. The prosecution has not produced any other incriminating materials apart from the evidence of P.Ws.1 and 2 to implicate A-1 and A-2 in this case. Though it is the version of the prosecution that M.O.1, a white tin containing little Monocrotophos poison was recovered at the instance of A-1, the fact remains as per the evidence of P.W.9, investigating officer, that only A-2 pointed out M.O.1 which was kept in the house of the deceased and thereafter A-1 was said to have produced M.O.1. It is pertinent to be noted that merely by the recovery of M.O.1, in the absence of any other acceptable evidence to the effect that such poison was administered by A-1 or A-2, the accused cannot be fastened with the liability of causing the death of the deceased by administering poison. 10. For the aforesaid reasons, we are constrained to come to the inevitable conclusion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt and the impugned judgment of conviction is unsustainable in law and appeal is https://hcservices.ecourts.gov.in/hcservices/ liable to be allowed. Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellants by the learned Principal Sessions Judge, Salem, in S.C.No.354 of 2004 dated 17.06.2005 are hereby set aside. Bail bonds executed shall stand cancelled. Fine amount paid, if any, is directed to be refunded to the appellants. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gg To 1. The Principal Sessions Judge, Salem. 2. The Chief Judicial Magistrate, Salem. 3. The Superintendent, Central Prison, Coimbatore. 4. The Superintendent, Special Prison for Women, Vellore. 5. The Inspector of Police, Omalur Police Station, Salem District. 6. The Public Prosecutor, High Court, Madras. 7.The Director General of Police, Mylapore, Chennai-4. 8.The Collector, Salem. 9.The Chief Judicial Magistrate,Pudukottai, Copy to The Section Officer, Crl.Section, High Court, Madras. +1cc to Mr.P.Arulmudi & Co., Advocate Sr 38604 SSV (CO) km/29.7. Crl.A.No.220 of 2006 https://hcservices.ecourts.gov.in/hcservices/