Prasanna & Ors. v. State by Inspector of Police Puduchatram Police Station Cuddalore District

Bail SlipThe Appellants/Accused No.1 & 2 namely,1.Prasanna,2.Sambandamwere directed to be released on Bail as per order of this Courtdt.1.4.08 and made in Crl.M.P.No.1/08 in CA.No.163/08 on the file ofthis Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.163 of 20081.Prasanna2.Sambandam.. AppellantsvsState by Inspector of PolicePuduchatram Police StationCuddalore District(Crime No.75/07).. Respondent Criminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional DistrictSessions Judge (Fast Track Court No.I), Chidambaram, CuddaloreDistrict, in S.C.No.319 of 2007 dated 8.1.2008.For Appellants: Mr.Anantha Narayanan for Mr.S.SasikumarFor Respondent: Mr.N.R.Elango, Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Additional SessionsDivision, Fast Track Court No.I, Chidambaram, made in S.C.No.319 of2007 whereby the accused/appellants stood charged, tried, foundguilty under Sec.302 of IPC, a charge of murder, and awarded lifeimprisonment along with a fine of Rs.1000/- and default sentence.2.The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 was a resident of Thanvanadiyanpallam, Vallam. P.W.2is his wife. The brother of P.W.1 by name Vaidyanathan, a bachelor,was living with them. He developed illicit intimacy with P.W.3 whowas already married and deserted by her husband. On 1.4.2007 atabout 9.30 P.M., when Vaidyanathan was staying with P.W.3, A-1 and A-2 came there and asked him to come to a music party. At that time,the deceased was in a drunken mood. When he refused to come, he wasforcibly taken by both the accused. When P.Ws.4, 5 and 6 who knewboth the deceased and the accused, were walking across ThachampalayamRailway Gate, they found the accused and the deceased quarrelling https://hcservices.ecourts.gov.in/hcservices/ with each other. A-1 was also having a big black stone in his handat the time of the said quarrel. The Village Administrative Officerof Periapattu Village, examined as P.W.7, on information through hisAssistant, proceeded to the said railway gate on the morning hours of2.4.2007 and found the dead body of Vaidyanathan. P.W.1 on coming toknow that his brother's dead body was found near the railway gate,proceeded there, and after seeing the dead body of his brother, heproceeded to the respondent police station and gave a complaint,Ex.P1, to P.W.15, the Inspector of Police. On the strength of thesaid complaint, a case was registered in Crime No.75 of 2007 underSec.302 IPC. The printed FIR, Ex.P18, along with Ex.P1 the report,were despatched to the concerned Judicial Magistrate's Court. (b) The case was taken up for investigation by P.W.15, whoproceeded to the spot, made an inspection and prepared an observationmahazar, Ex.P2, and a rough sketch, Ex.P19. Then he conductedinquest on the dead body in the presence of witnesses andpanchayatdars and prepared Ex.P20, the inquest report. He alsorecovered the material objects from the place of occurrence. Boththe accused were arrested on the day at about 3.00 P.M. Both cameforward to give confessional statements voluntarily. The same wererecorded. The admissible part of the confessional statement of A-1is marked as Ex.P21 and that of A-2 is Ex.P22. The accused producedM.O.7, a big black stone, which was recovered by the Investigatorunder a mahazar, Ex.P23. Then the dead body was sent to theGovernment Hospital for the purpose of autopsy along with arequisition, Ex.P11. (c) P.W.13, the Civil Assistant Surgeon, attached to theGovernment District Head Quarters Hospital, Cuddalore, on receipt ofthe said requisition conducted autopsy on the dead body ofVaidyanathan and has issued a postmortem certificate Ex.P9. He hasopined under Ex.P10 that the deceased would have died of head injuryand poly trauma. (d) Continuing the investigation, the Investigator recorded thestatements of the witnesses. All the material objects recovered fromthe place of occurrence and from the dead body and M.O.7 stone weresent for chemical analysis. Accordingly they were subjected toanalysis by the Forensic Sciences Department, and Exs.P7 and P8 arethe chemical analyst's report and serologist's report respectively.On completion of the investigation, the Investigator filed the finalreport.3.The case was committed to Court of Session, and necessarycharge was framed. In order to substantiate the charges, theprosecution examined 15 witnesses and also relied on 23 exhibits and7 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt and hence found the appellants guilty and awardedpunishment which is the subject matter of challenge before thisCourt. https://hcservices.ecourts.gov.in/hcservices/

4.Advancing arguments on behalf of the appellants, the learnedCounsel Mr.Anantha Narayanan would submit that in the instant case,the prosecution had no direct evidence to offer before the trialCourt; that it rested its case on the circumstantial evidence; thatP.W.3 with whom the deceased had illicit intimacy was examined as tothe last seen theory; that she has deposed that the deceased was in adrunken mood and that when he was invited by the accused to go to themusic party, he refused; but he was forcibly taken; that her evidenceshould have been rejected for the simple reason that there is a vitaldiscrepancy as to the time when the deceased was taken by theaccused; that apart from that, even when she came to know about thedeath of Vaidyanathan, the next morning, she has not informed toanybody that both the accused took the deceased forcibly the previousnight; that the said conduct of the witness would cast a doubtwhether such an incident could have taken place the previous day;that though the Investigator claimed that the statement of P.W.3 wasrecorded on 2.4.2007, it has reached the Court only on 10.6.2007,after a long lapse of two months; and that this would go to show thatthe statement of P.W.3 could not have been recorded as claimed by theInvestigator.5.Added further the learned Counsel that P.Ws.4 to 6 wereexamined by the prosecution to speak that they saw the deceased inthe company of the accused at or about the time near the railway gatewhere the dead body was found the next morning; that out of thesethree witnesses, P.Ws.4 and 6 have turned hostile; that much reliancewas placed by the prosecution on the evidence of P.W.5 and the trialCourt has accepted the same; that the evidence of P.W.5 should havebeen rejected for three reasons; that firstly, at one stage he hasstated that he saw the deceased in the company of the accused when heproceeded to the drama, and at the other stage, he has stated that hesaw him in their company when he was returning from the drama; thatsecondly, it is to be pointed out that he has also further deposedthat after witnessing the drama, he slept there and came only thenext morning, and thus it is highly doubtful whether he would haveseen the deceased in the company of the accused; that thirdly, he hasclaimed that he is a good friend of P.W.1; that had he seen thedeceased and the accused quarreling with each other and that too, A-1having a big stone in his hand, he would have definitely intervenedto question or pacify the situation, but not done so; that it ispertinent to point out that he has claimed that he saw the deceasedin the company of the accused at about 10.00 P.M.; that in suchcircumstances, one would naturally expect a person like P.W.5 tointervene, and thus it is highly doubtful whether P.W.5 could haveseen the deceased in the company of the accused; that further evenafter coming to know that the dead body of the deceased was actuallyfound near the railway gate, where the witness claimed to have seenhim along with the accused, the previous night, he has not whisperedto anybody about the same till he was examined by the police the nextday; that apart from that, though the Investigator claimed that thestatement of P.W.5 was recorded on 3.4.2007, it has reached the Courtonly on 5.7.2007; that this would also go to show that P.W.5 was onlya planted witness; that barring this evidence, the prosecution had noevidence to offer and thus the prosecution has not proved its case;but the trial Court relying on the above pieces of evidence whichwere not worth mentioning, has erroneously found the https://hcservices.ecourts.gov.in/hcservices/ appellants/accused guilty, and hence they are entitled for acquittalin the hands of this Court.6.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.7.It is not in controversy that the dead body of oneVaidyanathan, the brother of P.W.1, was found near Thachampalayamrailway gate. Following the inquest made by the Investigator,P.W.15, the dead body was subjected to postmortem by P.W.13, theDoctor, who has given a categorical opinion that the deceased diedout of head injury. The fact that Vaidyanathan met the homicidaldeath was never challenged by the appellants before the trial Court,and hence it could be recorded so.8.In order to substantiate the charge levelled against theappellants that on the night of 1.4.2007, both the accused forciblytook the deceased who was in a drunken mood, and caused his death bystrangulation and fled away after leaving the dead body nearThachampalayam railway gate, the prosecution before the trial Courthad no direct evidence to offer. It relied upon mainly twocircumstances. The first circumstance was that the deceased wasstaying with P.W.3 on the night, and he was in a drunken mood, and atthat time, A-1 and A-2 came there and invited him to come to themusic party; but, the deceased was not ready to go, and even then,they forcibly took him, and on the said night, the occurrence hastaken place. The evidence of P.W.3 as to the last seen theory wasfound to be shaky. Admittedly, during the relevant time, thedeceased was living with her. According to her, A-1 and A-2 came tothe house on the night hours and took the deceased forcibly while hewas in a drunken mood, to witness the music party. The next morningP.W.3 came to know that the dead body of Vaidyanathan was found nearthe railway gate. One would ordinarily expect a lady like P.W.3 whowas really kept by Vaidyanathan as a concubine during the relevanttime, to tell others about the visit of A-1 and A-2 and that theytook the deceased forcibly the previous night, but has not whisperedthe same to anybody. She has categorically deposed that she has notinformed to anybody till she was examined by the police. Though theInvestigator claimed that she was examined on 2.4.2007, her statementreached the Court on 10.6.2007. Taking into account the conduct ofP.W.3, her evidence as to the last seen theory becomes doubtful.9.The other piece of evidence which was projected by theprosecution before the trial Court was through P.W.5. Though threewitnesses were examined to speak that the deceased was found in thecompany of A-1 and A-2 near the railway gate at or about the time ofoccurrence, P.Ws.4 and 6 have turned hostile. The only witness whospoke about that fact was P.W.5. This Court is afraid whether itcould accept the evidence of P.W.5 for the following reasons.10.P.W.5 has claimed that he is a good friend of P.W.1.According to him, he found the deceased in the company of A-1 and A-2 near the railway gate and at that time, he also witnessed aquarrel, and A-1 was also having a big black stone in hand. Undersuch circumstances, one would naturally expect the witness to https://hcservices.ecourts.gov.in/hcservices/ intervene to pacify the situation or at least to question about thequarrel, but he did not do so. It becomes all the more doubtful thateven after coming to know that the dead body of Vaidyanathan waslying near the railway gate and even after participating in thefuneral, he did not inform to anybody. But, according to thewitness, he spelt about the same for the first time when he wasexamined by the police. Under the stated circumstances, the conductof P.W.5 would cast a doubt whether he would have seen the deceasedin the company of A-1 and A-2. The Investigator has claimed thatP.W.5 was examined on 3.4.2007; but, the statement has reached theCourt on 5.7.2007 after a long interval. It also strengthens thedoubt. In such circumstances, this Court is of the consideredopinion that no evidentiary value could be attached to the evidenceprojected through P.Ws.3 and 5. As rightly pointed out by thelearned Counsel for the appellants, barring these pieces of evidence,the prosecution had no evidence to offer. Even the blood group foundin the material objects recovered from the place of occurrence andthe stone which was recovered, did not tally. Hence it cannot bestated that the prosecution has proved the case beyond reasonabledoubt. Placing reliance on the above two pieces of evidence,sustaining a conviction would be highly unsafe. Therefore, thejudgment of the trial Court has got to be set aside, and theappellants are entitled for acquittal. 11.In the result, this criminal appeal is allowed setting asidethe judgment of the trial Court. The appellants are acquitted of thecharge levelled against them. The bail bonds executed by them shallstand terminated. The fine amounts if any paid by them will berefunded to them. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar nsv/To:1.The District Munsif cum Judicial Magistrate, Parangipettai, Cuddalore District.2.-do- Thro'The Chief Judicial Magistrate, Cuddalore.3.The Additional Sessions Judge Fast Track Court No.I Chidambaram, Cuddalore District4.-do- Thro'The Principal Sessions Judge, Cuddalore.5.The Superintendent, Central Prison, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/

6.The Inspector of Police Puduchatram Police Station Cuddalore District (Crime No.75/07)7.The District Collector, Cuddalore.8.The Director General of Police, Chennai.9.The Public Prosecutor, High Court, Madras.+ 1 cc to Mr.S.Sasikumar,Advocate,Sr.24161 Crl.A No.163 of 2008SGL(CO)EM/6.7.09