Ayyanar.. v. The State of Tamil Nadurep

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.406 OF 2008Ayyanar.. Appellant / AccusedVs.The State of Tamil Nadurep. by the Inspector of Police,Omalur Police Station,Salem District.. Respondent / Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Principal Sessions Judge,Salem made in S.C.No.125 of 2005, dated 11.8.2005. For Appellant : Mr.G.K.M.AppajiFor Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges the judgment of the Principal SessionsDivision, Salem made in S.C.No.125 of 2005, whereby the soleaccused/appellant stood charged under Sections 302 and 392 IPC,tried, found guilty as per the charges and awarded life imprisonmentand to pay a fine of Rs.1000/-, in default to undergo 6 months R.I.under Section 302 IPC and 7 years R.I. and to pay a fine ofRs.1000/-, in default to undergo 6 months R.I. under Section 392 IPCand the sentences were ordered to run concurrently.2.The short facts necessary for the disposal of this appeal canbe stated as follows:a)P.W.1 is the husband of the deceased Ellammal and is residingat Omalur Vattakadu within the jurisdiction of the respondent policestation. The accused also belonged to the same place. On 09.01.2004,P.W.1 and his wife took the goats for grazing in the morning hours.Some time later, P.W.1 went to purchase grocery at Vellalapatti andreturned in the afternoon. When he came back at about 2.45 p.m., hecould not see his wife. At that time, one Unnamalai was also grazing https://hcservices.ecourts.gov.in/hcservices/ her buffalo. P.W.1 asked her about his wife and she has replied thathis wife has taken the goats in the southern direction. Immediately,he went in search of her in the said direction, but he could not seehis wife and he shouted. On hearing the shouting, one Pachaiyappan,who was returning from work, came there and asked him about hisshouting. P.W.1 told him that his wife, who went for grazing, was notfound. At that time, Pachaiyappan told him that a body was lyingnearby. Immediately, P.W.1 went there and found the dead body of hiswife and she was tied by a towel over her mouth and he noticed thatthe blood was oozing and also found incised wounds on both the sidesof temporal region, left side shoulder and beneath the jaw. He alsofound that the gold ear stud was also found missing. b)Immediately, he proceeded to the respondent police station andgave a complaint Ex.P.1 at about 4.30 p.m. to P.W.10, the SubInspector of Police. On the strength of the same, P.W.10 registered acase in Crime No.14 of 2004 under Section 392 r/w Section 397 and 302IPC. Ex.P.13, the F.I.R. was despatched to the Court. c)P.W.11, the Inspector of Police, on receipt of the copy of theF.I.R., took up the investigation, proceeded to the spot and made aninspection in the presence of the witnesses. He prepared Ex.P.2, theobservation mahazar and Ex.P.14, the rough sketch. He conductedinquest on the dead body of the deceased in the presence of thewitnesses and panchayatdars and prepared Ex.P.15, the inquest report.He recovered the material objects from the place of occurrence undera cover of mahazar. The dead body was sent to the GovernmentHospital, Salem for the purpose of autopsy.d)P.W.12, the Doctor attached to the Salem Government MohanKumaramangalam Medical College, on receipt of the requisition, hasconducted autopsy on the dead body of the deceased and has issuedEx.P.17, the post-mortem certificate, wherein he has opined that thedeceased would appear to have died of shock and haemorrhage due tohead injuries.e)P.W.13, the Inspector of Police, took up further investigation.On 19.4.2004, the accused surrendered before the Judicial MagistrateNo.1, Mettur in respect of Crime No.111 of 2004 of the very sameOmalur Police station. The police custody was sought for and it wasactually ordered. Pending police custody, the accused came forward togive confessional statement, which was recorded in the presence ofP.W.7, V.A.O. and also the other witness. The admissible part of theconfessional statement was marked as Ex.P.6. Thereafter, the accusedtook the police party to P.W.8, from whom M.O.4, gold stud worn bythe deceased was recovered and it was identified by P.W.1. P.Ws.4 and5 came forward to give statements stating that they found the accusednearby the occurrence place at the time of occurrence and theirstatements were recorded by the concerned Judicial Magistrate underSection 164 Cr.P.C. On completion of the investigation, theInvestigating Officer has filed the final report. 3.The case was committed to the court of Sessions and necessarycharges were framed. In order to substantiate the charges levelled https://hcservices.ecourts.gov.in/hcservices/ against the accused, the prosecution examined 13 witnesses and alsorelied on 17 exhibits and 9 M.Os. On completion of the evidence onthe side of the prosecution, the accused was questioned under Section313 Cr.P.C. as to the incriminating circumstances found in theevidence of prosecution witnesses, which he flatly denied as false.No defence witness was examined. The trial court, on hearing thesubmissions made and looking into the materials available, took theview that the prosecution has proved the case beyond reasonabledoubt, found the accused guilty as per the charges and awardedpunishments as referred to above. Hence this appeal at the instanceof the appellant.4.Advancing arguments on behalf of the appellant, the learnedcounsel would submit that in the instant case, the prosecution had nodirect evidence to offer, but it has relied on only twocircumstances; that firstly, the evidence of P.Ws.4 and 5; thataccording to them, they found the accused near the place ofoccurrence at or about the time of occurrence; that secondly, therecovery of M.O.4 gold stud, which was worn by the deceased at thetime of occurrence; that according to the prosecution, the accusedactually surrendered before the Judicial Magistrate, No.1, Mettur inrespect of Crime No.111 of 2004 of the very same police station; thathe was actually sent for judicial remand; that thereafter, the policecustody was sought for and after a period of two months, hisconfessional statement has been recorded; that it has been shown asif he pledged the jewels with P.W.8; that the same has been recoveredonly in the month of June, 2004; that it would be quite clear thatall the documents are cooked up for the purpose of the case; that thestatements of P.Ws.4 and 5 were recorded on 25.04.2004 and it hasreached the court only on 09.12.2004; that the evidence of P.Ws.4 and5 should not have been relied on for the simple reason that theyclaimed that they have seen the accused at the time and place ofoccurrence, but they have not whispered the same to anybody for aperiod of 3 months; that their statements were recorded on 25.4.2004and it was sent to court only on 09.12.2004 and thus, it would beindicative of the fact that they could not have seen him at all andhence their evidence should have been rejected and that theprosecution has miserably failed to prove its case and hence theappellant is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on theabove contentions and has paid its anxious consideration on thesubmissions made. 6.It is not in controversy that Ellammal, the wife of P.W.1 wasfound dead on 09.01.2004 at the time and place of occurrence as putforth by the prosecution. Following the inquest made by P.W.11, theInvestigating Officer and the preparation of the inquest report, thedead body was subjected to post-mortem by P.W.12, the Doctor, who hasgiven his categorical opinion in Ex.P.17, the post-mortem certificatethat the deceased would appear to have died of shock and haemorrhagedue to the head injuries. The cause of death as put forth by theprosecution was never disputed by the appellant before the trialcourt or before this court and hence it has got to be recorded so. https://hcservices.ecourts.gov.in/hcservices/

7.In order to substantiate the charges levelled against theaccused/appellant, the prosecution had no direct evidence to offer,but it has relied on only two circumstances. Firstly, P.Ws.4 and 5saw the accused coming near the place of occurrence at about 3.00 to3.30 p.m. on 09.01.2004. This was shown as one of the strongcircumstances and the same was relied on by the prosecution and thetrial court has also accepted the same. This court is afraid whetherit can accept that circumstance to sustain conviction for the simplereason that their statements were recorded only on 25.04.2004 andthey were sent to court only on 09.12.2004. It is pertinent to pointout that P.Ws.4 and 5 belonged to the same village. The dead body wasfound by them on the same day and the case was registered on that dayitself and the investigation was on. The investigator would claimthat he visited the village and proceeded with the investigation andenquired the villagers on the very day. Had it been true that P.Ws.4and 5 have witnessed the accused coming from the place of occurrenceimmediately after the occurrence, they would have naturally spokenabout the same, but they have kept silence for a period of a fewmonths. Thus, the silence on their part would be indicative of thefact that the have come forward to give a false statement. 8.The second circumstance was the recovery of M.O.4, gold stud,which belonged to the deceased and was worn by her at the time ofoccurrence. This part of the evidence also cannot be relied upon.Admittedly, the accused was involved in Crime No.111 of 2004 of thevery same police station. The accused actually surrendered and wassent for judicial remand and he was in the judicial custody. Pendingsame, the Investigator asked for the police custody in this case andtook him into custody and during that time, the accused came forwardto give confessional statement, alleging his involvement in thecrime. It is claimed by the prosecution that the accused took thepolice personnel to P.W.8, with whom M.O.4 gold stud was actuallypledged. It is clear that this part of the evidence could have beencreated for the purpose of the case, which is quite evident from theintervening circumstances that the occurrence in this case has takenplace on 09.01.2004 and he was actually taken to police custody inCrime No.111 of 2004 of the very same police station in the month ofApril, 2004 and when he was in judicial custody, the police custodywas asked for and during the police custody, his confessionalstatement was recorded and the recovery of M.O.4 has taken place. Allwould go to show that these documents could have been created onlyfor the purpose of the present case. Under these circumstances, noreliance could be placed on those documents. Hence the prosecutionhas miserably failed to place and prove the necessary circumstances,pointing to the guilt of the accused. The trial court has alsomiserably failed to notice these lacunas in the evidence, but hastaken an erroneous view and found him guilty. Hence the judgment ofthe trial court has got to be made undone only by upsetting the same. 9.Accordingly, this criminal appeal is allowed, setting aside theconviction and sentence imposed on the appellant by the trial court.The appellant is acquitted of the charges levelled against him and isdirected to be released forthwith unless his presence is required in https://hcservices.ecourts.gov.in/hcservices/ connection with any other case. The fine amount if any paid by himshall be refunded to him. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Principal Sessions Judge, Salem. 2.The Superintendent, Central Prison, Coimbatore.3.The Inspector of Police, Omalur Police Station, Salem District.4.The Additional Public Prosecutor, High Court, Madras.5.The District Collector, Salem.6.The Director General of Police, Madras.1 cc To Mr.C.K.M.Appaji, Advocate, SR.3273CRL.A.NO.406 OF 2008SR(CO)SRA(03/02/2009)