Pannirselvam @ Pannir v. State

B A I L S L I PThe Appellant/Accused namely Pannirselvam @ Pannir wasdirected to be release on bail by the order of this Courtdated 22.2.2008 in Crl.MP.No.1 of 2008 in Crl. Appl.100/08.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL No.100 of 2008Pannirselvam @ Pannir.. AppellantVs.State by Inspector of Police,Nellikuppam Police Station,Cuddalore.Crime No.34 of 2005.. Respondent This criminal appeal has been preferred under Section 374Cr.P.C. against the judgment of the learned Principal SessionsJudge Cuddalore made in S.C.No.154 of 2007, dated 19.12.2007.For Appellant : Mr.John Sathyan for Mr.B.B.SendhilkumarFor Respondent : Mr.A.Saravanan,G.A(Crl.side)JUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)This appeal challenges the judgment of the PrincipalSessions Division, Cuddalore made in S.C.No.154 of 2007whereby the sole accused/appellant stood charged, tried andfound guilty under section 302 IPC and awarded lifeimprisonment along with a fine of Rs.5000/-, in default, toundergo four years rigorous imprisonment. sentence.2. The short facts necessary for the disposal of thisappeal can be stated thus:(a) The accused, who is the husband of the deceasedKasthuri, P.Ws.1 and 2, who are the parents of the deceased, https://hcservices.ecourts.gov.in/hcservices/ were all residents of Ambedkar Nagar. The house of P.Ws. 1 and2 is situate nearby the house of the accused. P.W.5 is thebrother, P.W.10 is the mother and P.W.9 is also the residentof that area who has witnessed the quarrel between the spouseoften. On the night of 5.1.2005 at about 9.30 p.m., theaccused informed his mother P.W.10 that his wife died.Immediately, the same was informed to P.Ws.1 and 2. Theyimmediately went inside the house and found the dead body.They entertained suspicion. P.W.1 proceeded to the respondentpolice station and gave a complaint Ex.P1 report at 3.00p.m. on 6.1.2005. On the strength of Ex.P1 report, a case cameto be registered under section 174(3) Cr.P.C. in Crime No.34of 2005. The F.I.R. Ex.P15 was despatched to Court. (b) Since there was suspicion in the death of Kasthuri,a copy of the F.I.R. was given to P.W.18 Deputy Superintendentof Police of that place. P.W.18 took up investigation. Heproceeded to the sport, prepared an Observation mahazar Ex.P5and also drew a rough sketch Ex.P20. The copy of the F.I.R.was given to R.D.O. for making enquiry since the marriagebetween the accused and the deceased took place just 4 ½ yearsprior to the occurrence. P.W.17 R.D.O., on receipt of thecopy of the F.I.R. proceeded to the spot, prepared anobservation mahazar Ex.P17 and conducted inquest on the deadbody and prepared Ex.P.18 inquest report in the presence ofwitnesses. The dead body was sent to post mortem.(c) P.W.14 doctor attached to the Government Hospitalconducted autopsy and also gave his opinion that the deceasedwould have died 44 to 48 hours prior to post mortem and hecould not fix the cause of death. The R.D.O further examinedthe witnesses and recorded their statement and gave his reportin Ex.P19. Pending investigation, the accused came forward togive confessional statement voluntarily which was recorded byP.W.15 Village Administrative Officer and the admissible partof the same is marked as Ex.P23, pursuant to which, theaccused produced M.O.1 Polyester saree which was recoveredunder a cover of mahazar. All the material objects were sentto the Court. The accused was sent for judicial remand. Oncompletion of the investigation, the Investigating Officerfiled a final report. (d) The case was committed to the Court of Sessions.Necessary charges were framed. In order to substantiate thecharges leveled against the accused, the prosecution examined19 witnesses and relied on 24 exhibits and marked 1 materialobject. On completion of the evidence on the side of theprosecution, the accused was questioned under section 313Cr.P.C. as to the incriminating circumstances found in theevidence of prosecution witnesses and he denied them as false.No defence witness was examined. The trial Court heard thearguments advanced on either side and took a view that theprosecution has proved its case beyond reasonable and awardedlife imprisonment. Hence, this appeal at the instance of theappellant. https://hcservices.ecourts.gov.in/hcservices/

3. Advancing the arguments on behalf of the appellant,the learned counsel would submit that according to theprosecution, the occurrence has taken place at 9.30 p.m. on5.1.2005 and there was no eye witness. The prosecution restedits case entirely on the medical evidence adduced and alsothe extra judicial confession alleged to have been given bythe accused to P.W.15 Village Administrative Officer. Theevidence putforth by the prosecution should have been rejectedby the trial Court. In so far as the medical opinion wasconcerned, the post mortem doctor has categorically given hisopinion that the deceased would have died of cardio-respiratory arrest and the cause of death could not be fixed.Hence, the case of the prosecution that she died ofstrangulation made by the accused was ruled out. The medicalevidence was not in favour of the prosecution. 4. In so far as the alleged confessional statement givenby the accused, pursuant to which recovery of the saree wasmade was concerned, according to the prosecution, the witnessin this regard brought forth by the investigating officer wasP.W.8 but P.W.8 has turned hostile. As per the evidenceavailable, even on 6.1.2005, the accused was actually in thecustody of the police. Under such circumstances, as if theaccused was arrested on 8.1.2005 and gave confessionalstatement and pursuant to the same, he produced the sareewere all invention and introduction in order to strengthen theprosecution case. If these two pieces of evidence fail, theprosecution has no evidence to offer. The trial Court has notconsidered the above aspects but found the accused guilty ofmurder. Therefore, the accused/appellant is entitled foracquittal.5. The Court heard the learned Additional PublicProsecutor on the above contentions and paid its anxiousconsideration on the submissions made.6. It is not in controversy that following the inquestmade by P.W.17 R.D.O., he prepared the inquest report Ex.P.18and the dead body was subjected to post mortem. P.W.14. doctorgave opinion in the post mortem certificate that the deceasedwould have died of cardio-respiratory arrest and the cause ofdeath could not be fixed. The specific charge raised beforethe trial Court as against the appellant /accused was that theaccused strangulated his wife and caused asphyxia and that wasthe cause of death of the deceased. In order to substantiatethe same, the prosecution had no direct evidence to offer. Itrelied on two pieces of evidence. 7. As could be seen from the available records, firstly,the medical opinion canvassed through P.W.14 doctor. Theprosecution attempted to place evidence before the trialCourt stating since the accused was living with his https://hcservices.ecourts.gov.in/hcservices/ wife/deceased during the relevant period, he must comeforward to give responsible answer how the death was causedbut he did not give proper answer. The prosecution cameforward with the specific charge that he actually strangulatedhis wife and caused the death but the medical opinioncanvassed through the post mortem doctor P.W.14. and also thecertificate stood contrary to the case of the prosecution.The opinion of the doctor found in the post mortemcertificate Ex.P10 runs as follows." I am of the opinion that there isno anti-mortem injury noted any where overthe examined Hyoid bone except for thePost Mortem separation of (R) greater hornas described earlier..... Anti mortem and Postmortem x-ray ofneck.Hyoid bone – No fracture. "and the doctor has given final opinion which reads asfollows:"The deceased would have died ofcardio-respiratory arrest. The cause ofwhich could not be clearly given."8. This opinion given by the doctor and spoken asevidence before the Court would clearly reveal that thecause of death could not be fixed, apart from that, the doctorhas given opinion that the death was caused due to cardio-respiratory arrest. Under such circumstances, it cannot besaid that the medical opinion canvassed through the postmortem doctor is in favour of the prosecution case and couldbe used as against the accused.9. The prosecution claims that the accused was arrestedon 8.1.2005 and on that day he came forward to givenconfessional statement which was recorded by P.W.15 VillageAdministrative Officer and thereafter, the accused producedM.O.1 saree. This statement was not in favour of theprosecution since the only witness who was examined in thatregard has turned hostile. Apart from that, it remains to bestated that the accused was actually available on 6.1.2005 andit was spoken by all the witnesses. When the accused wasavailable all along with the police during the relevant time,the case of the prosecution that they arrested the accusedonly on 8.1.2009 and he gave confessional statement pursuantto which M.O.1 saree was recovered, is unbelievable and thesame has got to be rejected. Under such circumstances, baringthese two pieces of evidence, the prosecution has no otherevidence before the trial Court and these evidence did nothelp the prosecution case at all. The Court is of the opinionthat it would be highly unsafe to accept the evidence ofprosecution to sustain the conviction as done by the trialcourt. The trial court, without considering all the above https://hcservices.ecourts.gov.in/hcservices/ aspects, has erroneously found the appellant guilty and hence,the judgment of the lower court has got to be made undone onlyby upsetting the same. 10. Accordingly, the criminal appeal is allowed, settingaside the conviction and sentence imposed on the appellant bythe court below. The appellant is acquitted of the chargelevelled against him. The bail bonds if any executed by theappellant shall stand terminated and the fine amounts if anypaid by him is ordered to be refunded to him. vsiSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Principal Sessions Judge, Cuddalore.2.The Inspector of Police, Nellikuppam Police Station, Cuddalore. 3.The Additional Public Prosecutor, High Court,Madras. 4.The Judicial Magistrate No.I, Cuddalore.5.Do Through the Chief Judicial Magistrate, Cuddalore.6.The District Collector, Cuddalore District.7.The Director General of Police, Madras.8.The Superintendent, Central Prison, Cuddalore.MBS(CO)SR/16.7.2009CRL.A.No.100 of 2008