B A I L S L I P The Appellant/Sole Accused viz., Muthusamy was directed to be released on bail as per order of this Court dated 10.07.2006 and made in Crl.M.P.No.1/2006 in Crl.A.No.544/2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.01.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.544 OF 2006 Muthusamy ..Appellant/Sole Accused Vs. State rep. by Inspector of Police, Erumaipatti Police Station, Namakkal District (Crime No.64/2005) ..Respondent/Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court, Namakkal made in S.C.No.1 of 2006, dated 26.05.2006. For Appellant : Mr.D.Shivakumaran For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court, Namakkal made in S.C.No.1 of 2006, whereby the sole accused/appellant stood charged under Sections 364, 302 and 201 IPC, tried, found guilty as per the charges and awarded one year R.I. and to pay a fine of Rs.1000/-, in default to undergo 1 month S.I. under Section 364 IPC, life imprisonment and to pay a fine of Rs.2000/-, in default to undergo one month S.I. under Section 302 IPC and 2 months R.I. and to pay a https://hcservices.ecourts.gov.in/hcservices/ fine of Rs.500/-, in default to undergo 15 days S.I. under Section 201 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)P.W.1 is the native of Pottireddipatti. His sister was given in marriage to the appellant/accused. Due to strained relationship between them, she went away along with one Ranganathan leaving her husband and children. The accused complained about the same to P.W.1, but he did not take any steps to secure her. The accused made a challenge that P.W.1 could not live peacefully thereafter. On 3.3.2005, the son of P.W.1 by name Suresh aged 10 years went for tuition to the house of P.W.7, but he did not return. b)P.W.4 saw the accused taking the child at about 7.30 p.m. Later at about 8.00 p.m., P.W.5 found the accused coming back with M.O.2, bag which was taken by the child for tuition. At about 8.00 p.m., when P.W.1 returned home, he was informed that Suresh, who went for tuition, did not return. They made a search in all the places. On 4.3.2005, he was informed that a dead body was found in the Well of one Seeyagounder, under whom P.W.4 was employed for doing agricultural operations. Immediately, P.W.1 rushed to his house and found the dead body of his child. c)He proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.15, the Sub Inspector of Police. On the strength of the same, a case came to be registered in Crime No.64 of 2005 under Section 174 Cr.P.C. Ex.P.20, the F.I.R. was despatched to the Court. d)P.W.16, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.21, the rough sketch. Then, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the inquest report. Then the dead body was sent to the Government Hospital, Namakkal for the purpose of autopsy. e)P.W.8, the Doctor attached to the Government Hospital, Namakkal, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.6, the post- mortem certificate and Ex.P.7, the final opinion, wherein he has opined that the deceased would appear to have died of Asphyxia due to strangulation. f)Pending investigation, P.W.16 arrested the accused on 7.3.2005, who came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.3. Pursuant to the same, the accused produced M.Os.1 to 3, slate, bag, books and notebooks, which were recovered under a cover of mahazar. Then, the case was converted from Section 174 Cr.P.C. to Sections 302 and 201 IPC. Ex.P.23, the https://hcservices.ecourts.gov.in/hcservices/ alteration report was sent to the court. The accused was sent for judicial remand. P.W.16 examined the witnesses and recorded their statements. On completion of the investigation, he filed the final report. 3.The case was committed to the Court of Sessions and necessary charged were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and also relied on 23 exhibits and 6 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the defence, 2 witnesses were examined and 4 documents were marked. The trial court, on consideration of the submissions put forth and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant/accused guilty and awarded punishments as referred to above. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel has made the following submissions: a)The occurrence, according to the prosecution, has taken place on 03.03.2005 after 5.30 p.m. The prosecution had no direct evidence to offer, but it relied on three circumstances. Firstly, P.W.4 saw the accused taking the child and secondly, P.W.5 found the accused alone coming along with the bag, which was actually taken by the child when he went for tuition. Thirdly, the recovery of M.Os.2 and 3 from the accused pursuant to the confessional statement alleged to have been given by him. The learned counsel for the appellant would submit that all these three circumstances have not actually been proved. So far as P.W.4 was concerned, he has categorically stated that he is employed in the field of one Seeyagounder. As per his evidence, he saw the accused taking the deceased child at about 7.30 p.m. But, he has categorically admitted at the time of cross examination that after finishing his work, he used to start from the field at about 6.00 p.m., since there was no light facility. Hence he could not explain as to how he happened to be there in the field at about 7.30 p.m. when he claimed to have seen the accused along with the child. Further, he has also admitted that on the next day, namely on 4.3.2005, he commenced his work at about 9.00 a.m. and he was also taking water from the same Well, in which the dead body was found and he has categorically deposed that no dead body was found till he left the field on 4.3.2005 and thus, it would clearly falsify the story of the prosecution. b)Apart from that, so far as P.W.5 was concerned, his evidence should not be relied upon, since he has categorically admitted that at about 8.00 p.m. when he was coming from the field, it was so darkness and he could not see anybody and hence he could not have seen the accused coming with the bag. He has further deposed that even after coming to know that the child was not found, he did not https://hcservices.ecourts.gov.in/hcservices/ tell to anybody that he saw the accused. Thus, it would be quite clear that he could not have seen the accused as claimed by him. c)Thirdly, the claim of the prosecution that M.Os.2 and 3, bags and notebooks were recovered from the accused on production, should have been rejected. The only witness examined by the prosecution in this regard was P.W.6. Though the prosecution claimed that they were recovered on 7.3.2005, the statement of the said witness reached the court on 27.5.2005. Had it been true that they were recovered on 7.3.2005, there was no impediment for sending those M.Os. or the statement of P.W.6 to the court immediately or within a reasonable time, but it has reached the court only after a period of two months and no explanation was forthcoming for the same. Above all, the medical evidence was against the prosecution story. According to the post-mortem Doctor, the death would have caused between 10.00 a.m. to 4.30 p.m. on 4.3.2005 and not before that. All would go to show that the prosecution has miserably failed to prove its case. d)Further, the learned counsel would submit that 15 days prior to the occurrence, the daughter of the accused was kidnapped by two persons from Musiri and they were caught red-handed and there was a panchayat and penalty was imposed and they have paid the amount and thus, they were aggrieved against the accused. It could be seen from the evidence adduced through the defence witness that the child of the accused was also equal aged that of the deceased child and they were taking tuition from P.W.7 and in order to wreak vengeance, they decided to take the child of the accused, but instead they have taken the child of P.W.1 and the investigation was not done properly in that line and thus, the prosecution has miserably failed to prove its case and hence the accused/appellant is entitled for acquittal. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious attention over the same. 6.It is not in controversy that the dead body of Suresh, aged 10 years, the son of P.W.1, was taken from the Well and after preparation of the inquest report, the dead body was subjected to post-mortem by P.W.8, the Doctor, who has given his categorical opinion in the post-mortem certificate that the child would appear to have died of Asphyxia due to strangulation. Ante-mortem injury was also noticed. The fact that the child died out of the said cause was never questioned by the appellant and hence no impediment is felt by the trial court in recording so, which has got to be affirmed. 7.In order to prove the charges levelled against the appellant/accused, the prosecution had no direct evidence to offer. As could be seen from the available materials, the prosecution rested its case entirely on circumstantial evidence. Those circumstances were three in number. According to P.W.4, he saw the accused taking the child at about 7.30 p.m. According to P.W.5, at https://hcservices.ecourts.gov.in/hcservices/ about 8.00 p.m., he found the accused coming with the bag, which was taken by the child. Pursuant to the confessional statement of the accused, M.O.2, bag and M.O.3, books and notebooks of the child were recovered from the accused/appellant on 07.03.2005. 8.Needless to say that in a given case like this where the prosecution rested its case on circumstantial evidence, it must place and prove all circumstances without a snap and those circumstances must be pointing to the hypotheses that except the accused no one could have committed the crime. If this test is applied, the court is afraid whether it can agree with the findings of the trial court. So far as the evidence of P.W.4 is concerned, it is true, at the time of chief examination, he has deposed that he saw the accused taking the child at about 7.30 p.m. when he was in the field. But at the time of cross examination, he has categorically admitted that he used to leave the field at about 6.00 p.m., since there was no light facility in order to work thereafter. But, he had no explanation to offer as to how he happened to be in the field at 7.30 p.m. on that day. He has also admitted that he went for agricultural operations on 04.03.2005 and he was taking water from the very same Well, in which the dead body of the child was found and taken out, but he has stated that no dead body was found when he was present at the field. Thus, it would be quite clear that the dead body of the child could not have been found in the Well, from which it was actually taken out during the relevant time. Thus, it would cast a doubt on the prosecution case. 9.So far as the evidence of P.W.5 was concerned, it has got to be rejected in view of the admission made by P.W.5 that it was utter darkness and he could not identify the persons, who were going through there. If so, he could not identify the accused also. Therefore, the evidence of P.W.5 that he found the accused crossing the field cannot be accepted. Equally, the claim of the prosecution as to the recovery of M.Os.2 and 3, namely bag, books and notebooks, pursuant to the confessional statement of the accused, cannot be accepted. The only witness examined for the arrest, confessional statement and the recovery was P.W.6. Though the Investigator claimed that the statement of P.W.6 was recorded on 7.3.2005, it has reached the court on 27.5.2005. Had it been true that such a statement was recorded and M.Os.2 and 3 were recovered on 7.3.2005, there could not be any impediment for the Investigator to send the same to the court immediately, but for a period of 2 months, they were not sent and no explanation was forthcoming from the Investigating agency. Therefore, no evidentiary value could be attached to this piece of evidence. Barring these three circumstances, the prosecution had nothing to offer. In the considered opinion of the court, though the prosecution claimed three circumstances, through which it made an attempt to prove the case, it has failed to prove those circumstances. The prosecution has miserably failed to bring home the guilt of the accused by placing sufficient and acceptable evidence indicating the nexus between the accused and the crime. Hence the judgment of the trial court has got to be made undone by upsetting the same. https://hcservices.ecourts.gov.in/hcservices/ 10.Accordingly, the judgment of conviction and sentence imposed on the appellant by the trial court is set aside and the appellant is acquitted of the charges levelled against him. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid shall be refunded to him. Accordingly, this criminal appeal is allowed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. The Additional District and Sessions Judge, Fast Track Court, Namakkal. 2. -do- Through The Principal Sessions Judge, Namakkal. 3. The Judicial Magistrate No.I, Namakkal. 4. -do- Through The Chief Judicial Magistrate, Namakkal. 5. The Superintendent, Central Prison, Coimbatore. 6. The Inspector of Police, Erumaipatti Police Station, Namakkal District. 7. The Additional Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. D. Shivakumaran, Advocate. S.R.No.706. CRL.A.NO.544 OF 2006 GV (CO) GSK 19.01.2009. https://hcservices.ecourts.gov.in/hcservices/