Bail Slip The Appellant/ Accused namely Mr. Murugesan was directed to be released on bail as per the order of this Court dated and made in Crl.M.P.NO.1411/02 dated 1.3.2002. BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 13.11.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.162 of 2002 Murugesan .. Appellant / Accused Vs. The State of Tamil Nadu rep by The Inspector of Police, Thondamuthur Police Station, Coimbatore, Cr.No.49/2000 .. Respondent / Complainant Prayer :- This appeal has been preferred under 374 of Cr.P.C., against the judgment dated 31.12.2001 in S.C.No.343 of 2001 on the file of the Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore. For Appellant : Mr.S.Samuel Raja, Advocate for M/s. V. Nicholas For Respondent : Mr.J.C.Durai Raj, Govt. Advocate (Crl.Side) JUDGMENT This appeal has been preferred against the judgment in S.C.No.343 of 2001 on the file of the First Additional Sessions Judge -cum- Chief Judicial Magistrate, Coimbatore. 2.According to the prosecution, the appellant/accused one year prior to 03.07.2000 suspecting the fidelity of his wife Fathima, P.W.1, treated her cruelly and hence he was charged under Section 498(a) IPC and on 03.07.2002 at about 5.00 am due to oral altercation had assaulted P.W.1 with an ever-silver vessel and https://hcservices.ecourts.gov.in/hcservices/ also with wooden instrument used for stirring, and hence he was charged under Section 324 IPC and on the same date at the same time with an intention to kill his 11 months old daughter Gayathri by holding her legs thrashed her on the floor causing instantaneous death and he has also been charged under Section 302 IPC. 3.The learned Committal Court (Judicial Magistrate No.VI, Coimbatore) after furnishing copies under Section 207 of Cr.P.C., to the accused had committed the case to the Court of Sessions for trial. On appearance of the accused the learned Additional Sessions Judge had framed the charges under Section 498(a), 324 and 302 IPC and when the charges were explained and questioned, the accused pleaded not guilty. 4.On the side of the prosecution P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.19 and M.O.Nos.1 to 6 were marked. On the side of the accused D.W.1 to D.W.3 were examined. 5.P.W.1 is the wife of the accused, who is an injured eye witness to the occurrence. But she has not supported the case of the prosecution. Hence, she was treated as a hostile witness. 6.P.W.2 to P.W.4 were eye witnesses to the occurrence. According to the prosecution, P.W.2 to P.W.4 were neighbours and on the date of occurrence ie., on 3.7.2000 they heard the distress call from P.W.1, they rushed to the house of P.W.1, they saw the accused suffering from fits and that within 20 minutes the accused became normal and they returned to their house and within few hours they against heared the cry from P.W.1 and when they went inside the house of P.W.1, they saw the accused had assaulted the child with M.O.2 and thereafter, holding the legs of the child thrashed the child on the floor causing instantaneous death. 7.P.W.1 along with her mother had preferred Ex.P.1-complaint to P.W.10, then Sub-Inspector of Police, Thondamuthur Police Station. P.W.10 had registered the complaint – Ex.P.14 under Thondamuthur Police Station Crime No.49 of 2000 under Sections 498 (a), 324 & 302 IPC. Ex.P.15 is the First Information Report. 8.P.W.11 is the Inspector of Police, who had conducted the investigation on the basis of FIR registered by P.W.10. He had proceeded to the place of occurrence and in the presence of witness P.W.5 had prepared mahazar Ex.P.5 for the recovery of M.O.2. Under Ex.P.3, P.W.11 has also recovered M.Os.1 & 3 to 6 in the presence of P.W.5 and another witness. P.W.11 has also conducted inquest in front of panchayatars for the body of the deceased and had sent the corpse for postmortem through a constable. On 4.7.2008, P.W.11 had arrested the accused at about https://hcservices.ecourts.gov.in/hcservices/ 00.15 hours at Kulathupallayam bus stand and in the presence of witness P.W.6 and another witness Kumar had recorded his confession statement. The admissible portion of the same is Ex.P.4. On the basis of it M.O.2 was recovered under Ex.P.5 marked in the presence of P.W.6. 9.P.W.8 is the doctor, who had conducted autopsy on the corpse of the deceased child Gayathri and issued Ex.P.8 – postmortem certificate. He had noted about three external injuries on the head of the child and also internal fractures on the skull of the deceased child. He had also seen fracture on the T1 and B2 vertebrae of the vertebral column of the child. The doctor has opinion that only due to the head injury sustained and also due to the fracture on the vertebral column the girl child had breathed her last. 10.P.W.9 is the staff of the Committal Court through whom Exs.P.10 & 11, chemical analysis reports were marked. 11.After completing the investigation, P.W.11 has filed the charge sheet on 30.10.2000 against the accused under Section 498 (a), 324 & 302 IPC. 12.When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused would state that a false case has been put up by the police against him and that he was taken to the police station from his house. He has examined D.w.1 to D.W.3 on his side. But no documentary evidence was let in by him. 13.The learned trial Judge on the basis of the evidence of P.W.2 to P.W.4 had convicted the accused under Section 304(1) IPC and sentenced him to undergo four years RI and slapped a fine of Rs.2,000/- with default sentence and also convicted the accused under Section 324 IPC and sentenced to undergo one year RI and acquitted the accused from the charge under Section 498(a) IPC with a direction that the sentence shall run concurrently. Aggrieved by the findings of the learned trial Judge this appeal has been preferred by the accused. 14.The points for determination in this appeal are whether the prosecution has proved the guilt of the accused under Sections 304(a) and 324 IPC beyond any reasonable doubt and whether the conviction and sentence of the learned trial Judge is liable to the set aside for the reasons stated in the memorandum of appeal. 15.POINTS:-The complaint Ex.P.4 was not marked through the complainant, but it was exhibited through P.W.11-Investigating Officer in this case. A perusal of Ex.P.14-complaint will go to https://hcservices.ecourts.gov.in/hcservices/ show that there are two signatories to the complaint, one is P.W.1 and another is P.W.1's mother Gomathi. P.W.1 was examined in this case. But she has not supported the case of the prosecution. Not even her signature in Ex.P.14 complaint was marked through her. Ex.P.1 signature of P.W.1 was curiously marked through Investigating Officer P.W.11. Though in Ex.P.14 there is an endorsement by the Court to the effect that Ex.P.1-signature of P.W.1 was marked through P.W.1, a perusal of the entire evidence of P.W.1 will not through any light as to the fact that Ex.P.1- signature was shown to her and she had admitted that the signature Ex.P.1 contained in Ex.P.14 belongs to her. After P.W.1 became hostile, we cannot give any credit to Ex.P.14-complainant. The other signatory to Ex.P.14 viz., Gomathi, the mother of P.W.1 was also not examined on the side of the prosecution to show that soon after the occurrence the complaint under Ex.P.14 was preferred against the accused. Apart from this major irregularity, the other irregularity in the case of the prosecution was also pointed out by the learned counsel for the appellant. The learned counsel for the appellant would contend that the entire case of the prosecution rest on the evidence of eye witnesses P.W.2 to P.W.4. According to the prosecution, P.W.2 to P.W.4 are all neighbours of P.W.1. The learned counsel for the appellant relying on Ex.P.16 and Ex.P.18, rough sketches, would contend that P.W.3-Pandiyan's house was not shown either in Ex.P.16 or in Ex.P.18, rough sketches, to show that he is a neighbour of P.W.1. Only P.W.2's house is shown as situate opposite to the house of P.W.1 in Ex.P.16, the same was not shown in Ex.P.18 as situate opposite to the house of P.W.1. P.W.4's house is shown in Ex.P.18 as situate behind the house of P.W.1, but in Ex.P.16 P.W.4's house was not shown. So, it is highly doubtful whether P.W.2 to P.W.4 are neighbours of P.W.1. P.W.11 has conducted inquest on the body of the deceased child on the same date between 20.30 hours and 23.30 hours in the presence of five panchayatars viz. Alla-Bhasha, Chandiran, Sakthivel, Bhasha & Ramakrishnan, but none of them was examined before the trial Court. 15(a)The learned counsel for the appellant relied on 1982(3) SC 466 (Krishan Chand Mangal Vs. State of Rajasthan), which had arisen out of the corruption case under Section 161 of IPC. In the said case the complainant – Rajendra Dutt died before the commencement of the trial. Admittedly, the said Rajendra Dutt was the complainant, who had preferred Ex.P.12-complaint. The case of the prosecution relied on the evidence of two of the persons, who accompanied the complainant to the accused and in their presence a demand of illegal gratification was made. In the above cited case it was held that the above said two persons, who have accompanied the complainant to the accused, viz., Ram Babu and Keshar Mal were examined as P.W.1 & P.W.2, even though the complainant could not be examined in the said case, on the basis https://hcservices.ecourts.gov.in/hcservices/ of the evidence of P.W.1 and P.W.2, the persons, who accompanied the complainant, the conviction was upheld by the Apex Court. 15(b)But in the case on hand even though the complaint – Ex.P.14 was preferred by P.W.1 and her mother Gomathi after P.W.1 turned hostile the prosecution has failed to examine Gomathi, the other signatory in Ex.P.14 to prove the same. The non examination of one of the complainants viz., Gomathi subsequent to the other P.W.1 turned hostile, is in my view fatal to the case of the prosecution. If Ex.P.14-complaint itself goes then the entire edifies of the case of the prosecution built up on Ex.P.14 collapses. Further, the learned counsel for the appellant also pointed out the delay in preferring the complaint even though the police station is situated about 1 ½ kms away from the place of occurrence, the complaint was lodged after a lapse of 13 hours. Each and every hours' delay is to be explained properly by the prosecution, which has not been done in this case. 15(c)Per contra, D.W.1 to D.W.3 were examined on the side of the accused to show that there was no quarrel between the accused and P.W.1 and that they led happy married life and that the child had fallen accidentally from the cradle and they took the child to the private doctor for treatment and the private doctor had refused to treat the child and advised them to take the child to the Government Hospital and before reaching the Government hospital, the child died. Under such circumstances, it cannot be said that the prosecution has proved the guilt of the accused beyond any reasonable doubt and certainly the benefit of doubt must go to the accused. 16.In fine, the appeal is allowed and the judgment in S.C.No.343 of 2001 on the file of the First Additional Sessions Judge – cum – Chief Judicial Magistrate, Coimbatore, is set aside and the accused is acquitted from all the charges levelled against him. The bail bond shall stand cancelled. Fine amount is to be returned to the accused. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssv https://hcservices.ecourts.gov.in/hcservices/ To, 1.The I Additional Sessions Judge,-cum- Chief Judicial Magistrate, Coimbatore. 2.The Principal District & Sessions Judge, Coimbatore. 3.The Judicial Magistrate No.VI, Coimbatore. 4.-do-the Chief Judicial Magistrate, Coimbatore. 5.The District Collector, Coimbatore. 6.The Director General of Police, Mylapore, Chennai. 7.The Public Prosecutor, High Court, Madras. 8.The Superintendent, Central Prison, Coimbatore. 9.The Inspector of Police, Thondamuthur Police Station, Coimbatore, Cr.No.49/2000 1 cc to Mr.V. Nicholas, Sr. 63665 Crl.A.No.162 of 2002 BS (CO) kk 19/11 https://hcservices.ecourts.gov.in/hcservices/