Mr.K.Ethirajalu v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.11.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.462 of 2009 Mathi ..Appellant / AccusedVs.State by: Inspector of Police, Kottucherry Police Station, Karaikal(Cr.No.93 of 2007) ..Respondent/ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional Sessions Judge, Puducherry at Karaikal made in S.C.No.27 of 2008 dated 31.3.2009.For Appellant : Mr.K.EthirajaluFor Respondent : Mr.T.Murugesan, Senior Public Prosecutor (Pondicherry)J U D G M E N T(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional SessionsDivision, Pondicherry in S.C.No.27 of 2008 whereby the soleaccused/appellant stood charged, tried and found guilty as per the charge of murder and awarded life imprisonment along with fine.

The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the wife of the accused through whom she begotten ason and three daughters. The deceased is the first son. The accused got married with the sister of P.W.1 through whom also he begotten ason and three daughters. The accused did not maintain P.W.1 and her children. The marriage of the deceased Rajesh, son of P.W.1 was arranged. Since the accused did not taken any steps in that regard, there was often quarrel between the deceased Rajesh and the accused. On earlier occasion, when there was such a quarrel, the deceased assaulted his father/accused. Hence, the accused gave a complaint to https://hcservices.ecourts.gov.in/hcservices/ the Police Station. The deceased Rajesh was arrested and was sent for judicial remand. Thereafter, he was released on bail. P.W.1 sent herson, deceased Rajesh to stay in her elder sister's house and he was staying there.

Advancing the arguments on behalf of the appellant, the learned counsel would submit, in the instant case, the prosecution had no direct evidence to offer. According to the learned counsel, it can be stated that the prosecution had no circumstantial evidence either directly or indirectly. Even as per P.W.1, there was quarrel on the preceding night of occurrence, i.e., on 19.7.2007 at 9.00p.m., and it was compromised by P.W.1 and thereafter, all of them went to bed. The accused was actually sleeping on the southern side of the house. On the next day morning, P.W.1 went over there and found her son dead. Apart from that, it cannot be inferred that the accused has caused the death of his son. According to the investigator, M.O.4 wooden log was recovered from the accused, following the confessional statement made by him. The same was subjected to analysis but the blood group was not found tallying. Hence, the scientific evidence was not in favour of the prosecution case. The prosecution had no evidence to offer Under such circumstances, the trial court has taken an erroneous view. Hence, the appellant is entitled for acquittal in the hands of this.

The Court heard the learned Senior Public Prosecutor, Pondicherry, on the above contention and paid its anxious consideration on the submissions made.

It is not in controversy that one Rajesh son of P.W.1 was found dead on 20.7.2007. Following the inquest made by the investigating officer, the dead body was subjected to post mortem.P.W.4, doctor has conducted autopsy and gave his opinion that the death is due to intracranial haemorrhage as a result of head injury. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court. Hence, the Sessions Judgehas rightly recorded so.

In order to substantiate that it was accused who attacked the deceased with wooden log and caused his death, the prosecution rests its case on the circumstantial evidence. After fully scrutinising the materials available, the Court is afraid whether it can sustain conviction as recorded by the trial Judge. In the instant case, even as per the evidence of P.Ws.1 and 2, there was quarrel between the accused and the deceased on the preceding night. Thereafter, it was amicable compromised by P.W.1 and all of them went to bed. The next day morning, P.W.1 saw her son dead. Except these circumstances, the prosecution had no other circumstances to offer. Even assuming that there was quarrel between the son/deceased and the https://hcservices.ecourts.gov.in/hcservices/ father/accused, the previous night, it was stated by P.W.1 that she amicably solved the dispute and all of them peacefully went to bed. There was a quarrel preceding the date of occurrence, cannot be acircumstance incriminating as against the accused. Added circumstanceis the recovery of M.O.4 wooden log on the confession alleged to have been made by the accused to the Investigator. It is well settled principle of law, mainly on the recovery of the weapon of crime, the conviction cannot be sustain. In the instant case, what was recovered was M.O.4 wooden log but the blood group found therein was not tallying. Therefore, the scientific evidence was not useful to the prosecution case. Hence, the two circumstances relied on by the prosecution are not worth enough to point the guilty of the accused. Under such circumstances, the accused/appellant is entitled for acquittal.