M.G.R. @ ChidambaramS/o Srirangan Gounder v. State by Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.12.2007CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.71 of 2007M.G.R. @ ChidambaramS/o Srirangan Gounder .. Appellant-vs-State by Inspector of Police,Perumpalai Police Station,Dharmapuri Distirct.Crime No.248 of 2003. .. RespondentMemorandum of Grounds of Criminal Appeal under Section 374(2)of the Criminal Procedure Code against the judgment dated 12.12.2006made in S.C.No.158 of 2005 on the file of the learned AdditionalSessions Judge, Fast Track Court, Dharmapuri.For Appellant::Mr.B. Sriramulu Senior Counsel for Mr.R. RajendranFor Respondent::Mr.P. KumaresanAdditional Public Prosecutor JUDGMENT(JUDGMENT OF THE COURT WAS MADE BY D.MURUGESAN, J.)The appellant along with two other accused, was tried inS.C.No.158 of 2005 as A1 by the Additional Sessions Judge Dharmapuri.By the Judgment dated 12.12.2006, he was found guilty under Section302 I.P.C. and was sentenced to undergo life imprisonment and to pay afine of Rs.1000/- in default to undergo rigorous imprisonment forthree months. Learned Additional Sessions Judge, however, acquittedthe other two accused viz., A2 and A3.2. The deceased is the wife of the appellant/accused. Appellanthad suspected the fidelity of the deceased. Therefore, there was aquarrel between them and the deceased had left the company of the https://hcservices.ecourts.gov.in/hcservices/ appellant and started living with her parents for a period of ninemonths prior to the date of occurrence. On 16.4.2003 at about 10.45p.m., the appellant along with two others viz., A2 and A3, came in aTVS 50 moped to the place of occurrence. At that time, the deceasedand P.W.1 were sleeping outside the house and more particularly thedeceased was sleeping in the nearby cattle shed. The other members ofthe family including P.W.2 and P.W.3 were sleeping inside the house.On hearing the shouting from the deceased, P.W.1 got up and saw theaccused stabbing the deceased on her left chest. While she alsoshouted, the accused threatened her that if she shouted, she wouldalso be murdered. Thereafter, the accused flood away from the sceneof the occurrence leaving the TVS 50 moped. P.W.2 also heard theshouting, came from the scene of occurrence and saw the accusedrunning away from the scene of occurrence. The deceased had succumbedto the injuries on the spot and P.W.1 gave the complaint Ex.P.1 at6.30 a.m. on 17.4.2003 to P.W.9, the Sub-Inspector of Police,Perumpalai Police Station. 3. P.W.9 registered a case in Cr.No.248 of 2003 under Section302 and 506(ii) I.P.C., Ex.P.12 is the F.I.R. He sent the same to theJudicial Magistrate concerned through P.W.10, Gr.1 Police Constableand submitted the copies of the F.I.R. and other records to the in-charge Inspector to Police, Hokenakkal Police Station and other higherofficials. On receipt of the records relating to Ex.P.12 from P.W.9,P.W.12 the Inspector of Police went to the scene of occurrence, andprepared Ex.P.13 rough sketch in the presence of witnesses. P.W.12conducted the Inquest in the presence of Panchayatdars and sent thebody of the deceased for post mortem through P.W.11, Head constableand recovered M.Os.7 to 9, blood stained saree, jacket and inskirt ofthe deceased through P.W.11. He also made arrangements to takephotographs of the deceased in the scene of occurrence and handed overthe case records to P.W.13 regular Inspector of Police of PennagaramPolice Sation, who had returned from other duty. P.W.13 took upfurther investigation and recorded the statement of witnesses. Sincethe first accused surrendered before the Harur Judicial Magistrate'sCourt, he has taken the first accused on police custody and recordedhis confession statement in the presence of the witnesses. As per theadmissible portion of the confession statement, P.W.13 recovered TVS50 moped, bloodstained knife and shirt in the presence of thewitnesses. Thereafter he arrested A2 and A3 on 27.5.2003 atSanarpatti Bus Stop and sent them to judicial custody. He sent thematerial objects to the forensic lab and obtained report from the lab.After completion of the investigation, he filed the charge sheetbefore the Court for the offence under Sections 302 and 302 r/w 109I.P.C. against the accused on 28.12.2003.4. To prove the charges against the accused, the prosecutionexamined 13 witnesses, marked 16 exhibits and produced 9 MaterialObjects. The accused was questioned under Section 313 Cr.P.C. as tothe discriminating materials available against him. However, theaccused denied each and every discriminating materials as false andstated that the case has been falsely foisted on him. https://hcservices.ecourts.gov.in/hcservices/

5. In support of the appellant, Mr.B. Sriramulu, learnedSenior Counsel submitted that the prosecution case suffers from numberof infirmities not only at the instance of the investigating officer,but also in view of lot of contradictions in the evidence of theprosecution witnesses.6. Firstly, he would submit that P.W.1 could not have seen theoccurrence, as admittedly, according to her, the accused was stabbingthe deceased only after hearing the noise of the deceased. There wasonly one stab injury on the body of the deceased, who was sleeping atthe time of occurrence. If the above statement of P.W.1 is taken astrue, she could not have witnessed the accused stabbing the deceased.Similarly, the evidence of P.W.2 cannot be considered as one of thewitnesses speaking about the occurrence. As admittedly, she also cameafter hearing the noise and saw the accused running away from thescene of the occurrence. Both the evidence of P.W.1 and P.W.2 cannotbe a ground for believing the case of the prosecution as to theinvolvement of the accused in the offence. He would also submit thatin any case there are lot of contradictions as to whether at the timeof occurrence, which is said to have taken place at 10.45 p.m. in thenight, the light was burning to enable the witnesses to see theoccurrence. He would also submit that the presence of the accused inthe scene of occurrence has not been proved and there are vitalcontradictions as to the recovery of TVS 50 moped also. He wouldfurther submit that the recovery of the moped from the scene ofoccurrence may prove the presence of the accused as spoken to by P.W.1and P.W.2. Nevertheless, on receipt of the complaint at 6.30 a.m. on17.4.2003, P.W.12, Inspector of Police, came to the scene ofoccurrence and prepared Ex.P.2, Observation Mahazar wherein P.W.12has shown the moped. The presence of the moped in the scene ofoccurrence was also spoken to by P.W.1 and P.W.2 as well as P.W.4.Nevertheless, an extreme different stand was taken before the Courtthrough the Investigating Officer P.W.13 that the seizure of the bikeentirely in a different place. The said contradictions between theevidence of P.W.12 and P.W.13 who are the investigating officerscannot be considered to be a meager defect in the investigation andthe same goes to the very genuineness of the implication of theaccused and go by them mutually trust like the case of theprosecution. In this context, learned Senior counsel furthersubmitted that the investigating officer miserably failed even to findout the owner of the moped. He would also submit that none of thewitnesses examined before the court was present at the time of inquestand the same throws serious doubt about their evidence, moreparticularly P.W.1 in the scene of occurrence or the manner in whichthe P.W.1 has spoken as to the occurrence. Lastly he would submit thatthough the court below has framed the charge on the basis that A1 dueto suspicion on the fidelity of his wife viz., the deceased hadcommitted the murder, none of the witnesses has not spoken about thesaid suspicion on the fidelity of the deceased. https://hcservices.ecourts.gov.in/hcservices/

7. Mr.P. Kumaresan learned Additional Public Prosecutor on theother hand submitted that it is true that there are two versions as tothe recovery spoken by the prosecution through P.W.12 and 13 and evenif the said evidence is eschewed, the prosecution has satisfactorilyproved the case through the eye witness viz., P.W.1 and the evidenceP.W.2 whose evidence corroborates the evidence of P.W.1 clubbed withthe medical evidence. Hence, learned Additional Public Prosecutorwould submit that merely because the investigation was defective, itwould not materially affect the case of the prosecution, andtherefore, the conviction and sentence require no interference.8. As much has been argued on the recovery and it is contendedby the learned Senior counsel that the contradictions as to therecovery in the evidence of P.w.12 and P.W.13 materially affects thecase of the prosecution and the same is disputed by the learnedAdditional Public Prosecutor, we are inclined to first consider suchsubmissions. It has been held by the Honourable Apex Court in variouscases, that merely because of the irregularity or defect or even thelaxity in the investigation or on the part of the investigatingofficer by himself would not affect the case of the prosecution andthe same cannot be a ground for acquitting the accused in the event,the prosecution is able to satisfy the court as to the charges, apartfrom the fact that such defective or irregularity or laxity would notmaterially affect the prosecution case. How far the defects in theinvestigation pointed out by either side would affect the prosecutioncase is a matter for further consideration. Seizure of M.O.2, TVS 50moped is a vital material piece of evidence for the prosecution toprove that the accused was present at the time of commission ofoffence and thereby the evidence of P.W.1 and P.W.2 implicating A1could also be considered. It is the admitted case of the prosecutionthat immediately on the complaint given by P.W.1 to P.W.9, the samewas taken on file and investigation was commenced by P.W.12. He wentto the scene of occurrence and prepared the Observation MahazarEx.P.2. In the Observation Mahazar, the TVS 50 was shown. In theRough Sketch Ex.P.13 drew by P.W.12 also the TVS 50 was shown. Boththe above documents were prepared by P.W.12, who commenced theinvestigation at the earliest point of time. We have no reason todisbelieve the said Observation Mahazar . Apart from that, there isno explanation whatsoever as to the presence of the TVS 50 in theplace of the occurrence. The above fact also fortifies from theevidence of P.W.1, 2, 4 while they speak as to the fact that after thecommission of the offence A1 along with two others have flood awayfrom the scene of occurrence. It is also seen from the evidence ofP.Ws.1 and 2 that after the observation mahazar was prepared, themoped TVS 50 was taken by the police from the scene of occurrence.Hence, from the above discussion, it is clear that the prosecution hasmade attempt at the initial stage to show that the accused left themoped in the scene of occurrence and ran away and that motor cycle wasseized by the police. https://hcservices.ecourts.gov.in/hcservices/

9. As far as the ownership of the bike is concerned, we mustopenly record our dissatisfaction that the investigating officer hasnot cared to investigate as to the ownership of the motor cycle.Though, the said aspect may not be relevant in all cases, but in thefacts and circumstances of the case, we deem it to consider as animportant piece of evidence to show the presence of the accused in thescene of occurrence as spoken to by P.Ws.1 and 2. Strangely theInvestigating Officer P.W.12, who has taken the motor cycle from thescene of occurrence, as could be seen from the evidence, has not comeout with true version to the Court by saying that the moped has beentaken to the police station and there after sent to the Court. Theabove defect in the investigation did not stop at that stage as theprosecution has taken an entirely different story when P.W.13 theinvestigating officer has come to the scene. According to him, theaccused surrendered before the Court on 22.4.2003 and he gave aconfession statement and on the basis of the admissible portion of theconfession statement Ex.P.4 the moped was seized from a bush which is2.k.m. away from the scene of occurrence at Kottampatti, which iscertainly not the place of occurrence. Even in the absence of anyevidence with regard to recovery, the prosecution case can stand onhis own legs through other evidence. In the given case as theprosecution has taken entirely a contradictory stand as to therecovery, in our opinion, the contradiction would certainly affect theprosecution case as to the presence of the accused in the scene ofoccurrence as spoken by P.Ws.1 & 2. By the same reason the evidence ofP.W.1 and 2 also cannot be believed as to the recovery. When theObservation Mahazar Ex.P.2 was prepared in the presence of P.W.6Rajamanickem, Village Administrative Officer and his assistantKuppusamy. The said Kuppusamy was not examined. Strangely P.W.6Rajamanickem, who was present when M.O.2, the TVS 50 was seized byP.W.12 from the scene of occurrence, was again shown as witness tospeak about not only regarding the seizure of the moped but also theseizure M.O.1 knife and M.O.6 blood stained shirt worn by the accusedby P.W.13. Surprisingly this witness is silent about the seizure ofthe moped TVS 50 from the scene of occurrence giving a go by to hispresence and he only speaks about the seizure of M.Os.1 and 6 madeby P.W.13. 10. The combined reading of the above only discloses that itis not a mere failure on the part of the prosecution case to prove thesame but is a material defect. Such material defect and contradictionsthemselves have destroyed the very case of the prosecution. We arepointing out thin only because to judge as to whether P.W.1 could havewitnessed the scene of occurrence or not. When once the aboverecovery is not accepted by us then the evidence that to the accusedalong with two others ran away from the scene of the occurrence afterleaving the moped also cannot be accepted. Though a fair attempt wasmade by the Learned Additional Public Prosecutor that even if therecovery part is eschewed, going by the evidence of P.W.2 and 4, it isamply proved that the accused had committed murder, we are at last tounderstand whether this court is for the purpose of consideration as https://hcservices.ecourts.gov.in/hcservices/ to the involvement of the accused, could accept a portion of theevidence and reject the rest of the evidence of P.W.1 and P.W.2. Inthe circumstances like this, it would not be safe to accept theportion of the evidence and reject the evidence which is against theprosecution. On the other hand, on the basis of the findings of thecriminal jurisprudence, such consideration leading to benefit shouldonly be extended in favour of the accused. 11. In this background the prosectuion case as put forththrough P.W.1 should be considered. According to P.W.1, she waspresent in the scene of the occurrence which took place around 10.40p.m. on 16.04.2003 and it is gone out in the evidence that thedeceased succumbs injuries on the chest and there is no care foranybody to save the life of the deceased. In these circumstances, theconduct of P.W.1 in not lodging a complaint by herself or making anattempt to inform some other family members who were also present inthe house till 6.30 a.m. on the next day. Though the statement underSection 161 Cr.P.C. was recorded from her on 19.4.2003, the saidstatement was received by the Court only on 21.4.2003. Neverthelesstwo subsequent statements were recorded from her and one statement wason 27.5.2003 and the said statement reached the court only on16.08.2004 i.e., after one year and three months. There is absolutelyno explanation by the investigating officer as to the above delay.Here again, if the delay in sending the statement to the Court byitself may not be considered to be a vital in all cases but, again, inthis case the evidence of P.W.1 is questioned on the ground that shecould not have seen the occurrence. The said delay assumesimportance. One more fact to be mentioned as to the above submissionsmade by the learned Senior Counsel appearing for the appellant thatnot only P.W.1, but also the other witnesses examined on behalf of theprosecution, were shown as witness in the inquest. It is notsufficient that they were present at the inquest or they were notavailable, as atleast P.W.1 was present throughout the inquest. Butexcept P.W.1, others were not examined, throwing serious doubt aboutthe inquest itself.12. Yet another contradiction that has been pointed out by thelearned Senior Counsel is as to whether P.W.1 could have seen theoccurrence. P.W.1 has spoken as to the light that was burning nearthe scene of occurrence. But, P.W.3 has not supported the case muchless the investigating officer, P.W.12 who was the first officer andwho happened to arrive at the scene of occurrence, did not notice anylight burning and it is improved version through the evidence ofP.W.13 only and the observation mahazar also does not show thepresence of any light.13. For all the above reasons, we do not agree with thesubmissions made by the learned Additional Public Prosecutor thatthere was only a mere defect in the investigation and therefore theprosecution case should not be disbelieved. As we have found that thedefect has materially affected the very case of the prosecution as tonot only implication of the accused but also the very fact that P.w.1, https://hcservices.ecourts.gov.in/hcservices/ who is the complainant and the only witness, could have informed theother witnesses/neighbors about the scene of occurrence. Hence, theappellant is entitled to the benefit of doubt.14. Accordingly the conviction and sentence imposed by thelearned Additional Sessions Judge, Fast Track Court, Dharmapuri, inS.C.No.158 of 2005 is set aside and the appeal is allowed. Theappellant shall be released forthwith if he is otherwise required inany other case. Learned counsel for the petitioner has submitted thatthe fine amount has already been paid by the appellant before thelower court. It is directed that the lower court shall refund thesaid fine amount to the appellant.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarggsTo1. The Additional Sessions Court (Fast Track Court No.1), Dharmapuri.2. -do- through the Pricipal Sessions Judge, Dharmapuri @ Krishnagiri3. The Superintendent, Central Prison, Salem.4. The District Collector, Dharmapuri5. The Director General of Police, Chennai-46. The Public Prosecutor, High Court, Madras.7. The Inspector of Police, Perumpalai Police Station, Dharmapuri District.8. The Joint Secretary to Government of Tamil Nadu,Public (Law and Order), Seretariat,Fort St.George, Chennai -9.1 cc To Mr.R.Rajendran, Advocate, SR.73244. Crl.A.No.71 of 2007VRK(CO)RVL 29.01.2008