Case: Subramaniam Vs. State Of Tamil Nadu

that I will protect my child. Hence, as and after thought they had foisted the false case against me. I am innocent." 23. The finding of the High Court that appellant had to prove title of his land ex facie is incorrect. P.W. 1 categorically stated that appellant had three acres of land. P.W. 3 also accepted that land of the appellant is almost by the side of his land. In view of the admission made by the prosecution witnesses, the High Court, in our opinion, committed a serious error in arriving at a conclusion that he did not possess any land whatsoever. Mr. Kanagaraj, however, would submit that even if he had gone for irrigating his land, the same may not take much time. In any event, having regard to the evidence of P.W. 3, it is wholly unlikely that he was absent from his house. There are two aspects of the matter. One is that the reasoning of the High Court that he did not have any land whatsoever and, therefore, he must be presumed to have been in his house only appears to be wholly incorrect. But even assuming that he did not have any land and he in fact went to P.W. 3 for the purpose of taking his wife to hospital may not by itself be a ground for holding him guilty. Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt.24. Another aspect of the matter cannot be lost sight of. According to P.W. 2, police had already arrived when they reached at the place of occurrence on the next day morning. P.W. 2 in his evidence, stated:"While, ourselves along with the relatives reached the village of my son-in-law it would be 6.00 or 7.00 a.m. While we went there the police were present, who had enquired the villagers and ourselves. The Tahsildar had made the enquiry but I do not remember the date."The said statement was corroborated by P.W. 3 in his evidence, stating:"I went and conveyed the information to her mother and again returned where the wife of the accused was lying and he could be around 4 or 5 a.m. I am not aware as to who had conveyed the information to the police. Within a short time after I went there the police arrived and the father-in- law and mother-in-law of the accused arrived around 9o clock. Prior to the arrival of the father- in-law and mother-in-law of the accused the police enquired me, and also the neighbours. After the arrival of father-in-law and mother-in-law of the accused they were enquired by the police."P.W. 11 - Sivakumar, Sub-Inspector in his evidence could not say at what time he had arrived at the place of occurrence when a pointed question was put to him.25. The police must have received some information. Why the other information was suppressed by the prosecution has not been explained. In a situation of this nature particularly if an FIR was lodged after recording the statements of the witnesses, another FIR would not be admissible in evidence and ordinarily an investigation cannot be started without recording the FIR.26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654] , the same was held to be one of the circumstances against the prosecution, stating:"The High Court has also pointed out that no reliance could be placed on the FIR which contains the names of the assailants because PW 1 in his cross-examination has admitted that the FIR was taken down after the Inspector visited the site and they were then taken to the police station."27. Admittedly, a plastic bottle was found near the cot. It was seen by P.W. 3. However, his statement that he did not find any smell coming out from the mouth of the deceased is difficult to accept. He is not an expert. It is wholly unlikely that he having observed that death had already taken place, he would smell the mouth of the deceased. The possibility that having seen the bottle which admittedly at one point of time contained some poison, appellants assuming that she had consumed poison and rushing to the house of the P.W. 3 who might have been in a position to make arrangement for shifting her to hospital cannot be ruled out. In so assuming, he might have committed a mistake but it is also difficult to arrive at a definite conclusion that only because a plastic bottle was found, appellant must have deliberately kept it so as to raise a false plea. We do not think that any such conclusion can be arrived at. If such a conclusion was arrived at, the same would amount to surmise and conjecture. The High Court was considering a judgment of acquittal; it set aside a part of the finding of the learned Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the learned Sessions Judge, in our opinion, cannot be said to be wholly unreasonable or otherwise perverse. Circumstances brought on record by the prosecution, in our opinion, are not such which would lead to a definite conclusion that appellant and appellant alone had committed the offence. In the aforementioned situation, the High Court should have approached the case with some caution.28. In K. Prakashan vs. P.K. Surenderan [(2008) 1 SCC 258] , this Court held:"We, therefore, are of the opinion that keeping in view the peculiar fact situation obtaining in the present case it cannot be said that the judgment passed by the learned trial judge was perverse or suffered from any legal infirmity. It was not a case where the learned trial judge failed to consider the evidence brought on record and/or misappreciated the same."

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]24. We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. This is one such case where we find that there is a reasonable doubt in regard to the cause of death of Jabeena and we find it not safe to rely upon the evidence of PW-8, solely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.The finding of the High Court that appellant had to prove title of his land ex facie is incorrect. P.W. 1 categorically stated that appellant had three acres of land. P.W. 3 also accepted that land of the appellant is almost by the side of his land. In view of the admission made by the prosecution witnesses, the High Court, in our opinion, committed a serious error in arriving at a conclusion that he did not possess any land whatsoever. Mr. Kanagaraj, however, would submit that even if he had gone for irrigating his land, the same may not take much time. In any event, having regard to the evidence of P.W. 3, it is wholly unlikely that he was absent from his house. There are two aspects of the matter. One is that the reasoning of the High Court that he did not have any land whatsoever and, therefore, he must be presumed to have been in his house only appears to be wholly incorrect. But even assuming that he did not have any land and he in fact went to P.W. 3 for the purpose of taking his wife to hospital may not by itself be a ground for holding him guilty. Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt.24. Another aspect of the matter cannot be lost sight of. According to P.W. 2, police had already arrived when they reached at the place of occurrence on the next day morning. P.W. 2 in his evidence, stated:"While, ourselves along with the relatives reached the village of my son-in-law it would be 6.00 or 7.00 a.m. While we went there the police were present, who had enquired the villagers and ourselves. The Tahsildar had made the enquiry but I do not remember the date."The said statement was corroborated by P.W. 3 in his evidence, stating:"I went and conveyed the information to her mother and again returned where the wife of the accused was lying and he could be around 4 or 5 a.m. I am not aware as to who had conveyed the information to the police. Within a short time after I went there the police arrived and the father-in- law and mother-in-law of the accused arrived around 9o clock. Prior to the arrival of the father- in-law and mother-in-law of the accused the police enquired me, and also the neighbours. After the arrival of father-in-law and mother-in-law of the accused they were enquired by the police."P.W. 11 - Sivakumar, Sub-Inspector in his evidence could not say at what time he had arrived at the place of occurrence when a pointed question was put to him.25. The police must have received some information. Why the other information was suppressed by the prosecution has not been explained. In a situation of this nature particularly if an FIR was lodged after recording the statements of the witnesses, another FIR would not be admissible in evidence and ordinarily an investigation cannot be started without recording the FIR.26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654] , the same was held to be one of the circumstances against the prosecution, stating:"The High Court has also pointed out that no reliance could be placed on the FIR which contains the names of the assailants because PW 1 in his cross-examination has admitted that the FIR was taken down after the Inspector visited the site and they were then taken to the police station."27. Admittedly, a plastic bottle was found near the cot. It was seen by P.W. 3. However, his statement that he did not find any smell coming out from the mouth of the deceased is difficult to accept. He is not an expert. It is wholly unlikely that he having observed that death had already taken place, he would smell the mouth of the deceased. The possibility that having seen the bottle which admittedly at one point of time contained some poison, appellants assuming that she had consumed poison and rushing to the house of the P.W. 3 who might have been in a position to make arrangement for shifting her to hospital cannot be ruled out. In so assuming, he might have committed a mistake but it is also difficult to arrive at a definite conclusion that only because a plastic bottle was found, appellant must have deliberately kept it so as to raise a false plea. We do not think that any such conclusion can be arrived at. If such a conclusion was arrived at, the same would amount to surmise and conjecture. The High Court was considering a judgment of acquittal; it set aside a part of the finding of the learned Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the learned Sessions Judge, in our opinion, cannot be said to be wholly unreasonable or otherwise perverse. Circumstances brought on record by the prosecution, in our opinion, are not such which would lead to a definite conclusion that appellant and appellant alone had committed the offence. In the aforementioned situation, the High Court should have approached the case with some caution.28. In K. Prakashan vs. P.K. Surenderan [(2008) 1 SCC 258] , this Court held:"We, therefore, are of the opinion that keeping in view the peculiar fact situation obtaining in the present case it cannot be said that the judgment passed by the learned trial judge was perverse or suffered from any legal infirmity. It was not a case where the learned trial judge failed to consider the evidence brought on record and/or misappreciated the same."