Ariyamuthu v. Saroja

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2011CORAM THE HONOURABLE MS.JUSTICE R.MALA CRL.R.C.No. 164 of 2006 Ariyamuthu .. Petitioner/Defacto complainant..Vs..1.Saroja2.Periyasamy .. Respondents/Accused 1 and 23.State rep. by The Inspector of Police Kairalabath Police Station Perambalur District. Crime No.32 of 2004 .. Respondent/ComplainantPrayer:- This Criminal Revision Case is filed under Sections 397 readwith 401 Cr.P.C., against the order of acquittal dated 30.11.2005 inS.C.No.89 of 2004 on the file of the Sessions Court, Perambalur. For Petitioner: Mrs.Usha RamanFor R1 : Mr.A.PadmanabanFor R2 : served For R3 : Mr.S.Rajendiran Govt. Advocate (Crl.side)ORDERThe Criminal Revision has been preferred by the revisionpetitioner/Defacto complainant against the acquittal order passed inS.C.No.89 of 2004 dated 30.11.2005, on the file of the SessionsCourt, Perambalur. 2.The case of the prosecution is as follows:(i) P.W.1 is the father of the deceased Viswanathan and thefirst accused Saroja is wife of the deceased. The deceasedViswanathan and the first accused married twenty years back. Due tothe lawful wedlock, they gave birth to one daughter namely Sangeethaand a son and the said Sangeetha was married. For the past 18 years,the first accused had illicit intimacy with the second accused. Sothe deceased Viswanathan lodged a complaint before the Kairalabath https://hcservices.ecourts.gov.in/hcservices/ Police Station. Prior to this occurrence, the accused attempted toassault the deceased Viswanathan. So the deceased Viswanathan wasliving with his father P.W.1. One month prior to the occurrence, thefirst accused gave a petition to the police and the police settledthe matter amicably. (ii) On the fateful day, (i.e.) 16.03.2004, one Sankar calledthe deceased Viswanathan to Moongilkadu, for drying chilly. Onsuspicion, when P.W.1, his son-in-law Neelamegam P.W.3, Raja P.W.4were proceeding within ½ furlong, they heard an alarming sound. WhenP.W.1 rushed to the spot, he found that the second accused stabbingViswanathan on his neck and the first accused assaulted on his facerepeatedly. On seeing the witnesses, the second accused escaped fromthe scene of occurrence. The first accused was handed over to thepolice by the witnesses. (iii)Immediately, P.W.1 rushed to the police station and lodgedEx.P1 complaint. P.W.12 Sub-Inspector of Police, Kairalabath PoliceStation, has received the complaint under Ex.P1 from P.W.1 andregistered a case in Cr.No.32/2004 under Section 302 I.P.C. and theprinted F.I.R. was marked as Ex.P7 and then, he despatched the sameto the concerned Judicial Magistrate's Court. (iv) P.W.13 Inspector of Police took up the matter forinvestigation. He went to the place of occurrence and prepared anobservation mahazar under Ex.P4 in the presence of P.W.7 Govindarajand he also drew rough sketch under Ex.P8. From 17.25 p.m. to 18.50p.m., P.W.13 conducted inquest on the body of the deceasedViswanathan and prepared Ex.P9 inquest report. Then he sent the bodyfor autopsy along with the requisition to the Medical Officer throughthe Head Constable. Then, he examined the witnesses and recordedtheir statements. As per the statements recorded from the witnesses,P.W.13 altered the Section 302 I.P.C. into Section 120B read with 302I.P.C. and the alteration report was marked as Ex.P10. (v) P.W.2 Dr.Balasubramanian, who received the body of thedeceased and conducted autopsy and pointed out the external andinternal injuries, which are as follows:External Injuries:1. 1" X ½" X ½" stab wound left fore head;2. 1" X ½" X ½" over left cheek;3. 1 ½" X 1" X 1" stab injury over fore head above nose;4. 1" X 1" X 1" stab injury over left eye-brow;5. 1" X ½" stab injury over left post occipital;6. Injury over nose;7. Wound 1" X ½" post occipital over left head;8. 1" X ½" injury over left ear;9. 1" X ½" injury over left ear; https://hcservices.ecourts.gov.in/hcservices/

10.1"X1/2" X ½" over nape of neck;Internal Injuries:Heart Empty, Skull – frontal bone left side fracture. The deceased died prior to 20-22 hours of autopsy. Death dueto injury to brain and haemorrhage and shock. The post-mortemcertificate was marked as Ex.P3.(vi)On 17.03.2004, at about 8.25 a.m., P.W.13 arrested thefirst accused Saroja at Thelur to Jayankondam main road, bus stop. Atthat time, she gave confession voluntarily, which was recorded inthe presence of P.W.8 Govindaraj and one Viswanathan. Ex.P5 is theadmissible portion of the first accused, in which, she stated thatshe is ready to hand over the hidden weapon. In pursuance of thesame, she handed over M.O.1 Aruval under Ex.P6 seizure mahazar in thepresence of the witnesses P.W.8 and one Viswanathan. After examiningthe witnesses, the first accused was remanded to judicial custody onthe same day itself at 1.15 p.m. Then, P.W.13 Inspector of Police,arrested the second accused at Kallakurichi temple on the same dayitself. Then, he handed over both the M.Os. to the Court under FormNo.95. Since the first accused has sustained injuries, she was takento the Government Hospital. Thereafter, he examined the otherwitnesses and recorded their statements and sent the accused to thejudicial custody. During the investigation, P.W.6 Sankar supportedthe case of the prosecution , but he turned hostile. After completinginvestigation, P.W.13 filed the charge sheet against both the accusedunder Sections 120B read with 302 I.P.C.3.The trial Court posed questioning on the accused about theincriminating materials, for which, they have stated that a falsecase has been foisted against them. After considering the oral anddocumentary evidence, the trial Court acquitted the accused from thecharges levelled against them, against which, the present revisionhas been preferred by P.W.1, who is none other than the father of thedeceased Viswanathan. 4.Challenging the order of the acquittal, the learned counselfor the revision petitioner/P.W.1 submitted that the trial Court hasnot properly appreciated the evidence of P.Ws.1, 3 and 4, who arethe eye-witnesses. The trial Court has given more importance to thearrest of the first accused and disbelieved the arrest of the firstaccused and recovery under Section 27 of Indian Evidence Act. Henceshe prayed for setting aside the acquittal order and remanding thematter for re-trial to the trial Court. 5. Even though the respondents 1 and 2/accused were served, noone represented on behalf of them. https://hcservices.ecourts.gov.in/hcservices/

6.Considered the submissions made by the learned counsel for therevision petitioner and the learned Government Advocate (Crl. Side)appearing on behalf of the third respondent and materials availableon record. 7.It is the duty of the prosecution, to prove the guilt of theaccused under Sections 120B read with 302 I.P.C. beyond reasonabledoubt. It is true that on the side of the prosecution, P.W.1 toP.W.13 were examined, Exs.P1 to P10 and M.O.1 and M.O.2 were marked.The death of the deceased is homicidal and that has been proved byP.W.2 Dr.Balasubramanian and Ex.P3 Post-mortem Certificate. Thealleged eye-witnesses are P.W.1, 3 and 4. The case of the prosecutionis that on the fateful day, (i.e.) 16.03.2004, one Sankar was takenthe deceased Viswanathan to Moongilkadu for drying chilly and he wasexamined as P.W.6, but he has not supported the case of theprosecution and turned hostile. 8.The trial Court has acquitted the accused on the basis thatthe prosecution has not been proved the following three grounds: (i)The place of occurrence has not been proved (ii) The injuries to thefirst accused was not properly examined (iii) Since the deceased hassustained stab injuries, the blood stain on the earth in the placeof occurrence and blood stained clothe of the deceased have not beenrecovered. So the benefit of the doubt has been given in favour ofthe accused and they were acquitted. 9.As per Sections 397 and 401 Cr.P.C., the powers of revisionalCourt is very limited. If the revision petitioner proved that thefindings of the trial Court is perverse, the non-appreciation of anyevidence or findings have suffered illegality or irregularity, thenonly the revisonal Court has empowered to interfere in the findingsof the trial Court and order for re-trial. Here, the learned SessionsJudge has considered the evidence of P.Ws.1, 3 and 4, who arealleged to be the eye-witnesses, in their evidence, they havespecifically mentioned that in the place of occurrence, there wasblood stained earth, whereas P.W.13 Investigating Officer stated thatthere was no blood stain in the place of occurrence. So except M.O.1Aruval, no other material objects were recovered (i.e.) blood stainedclothe and blood stained earth have been seized. In suchcircumstances, the star witness P.W.6 Sankar has also turned hostileand there is no evidence to show that where was the occurrence wastaken place. The trial Court considered this aspect and came to theconclusion that the place of occurrence has not been proved by theprosecution beyond reasonable doubt.10.It is also pertinent to note that the deceased sustainednearly 10 injuries namely, a stab injury on forehead above nose,forehead, left cheek, left eye-brow, left post occipital, nose, postoccipital over left head, left ear, nape of neck and other injuriesall over the body. Furthermore, it is pertinent to note that the https://hcservices.ecourts.gov.in/hcservices/ deceased Viswanathan died instantaneously on the spot itself. In suchcircumstances, there must be blood stain on the earth in the place ofoccurrence and in the clothe worn by the deceased. But no blood stainhas been found place in the place of occurrence and no blood stainedclothe of the deceased was recovered. So the trial Court hascorrectly held that the prosecution has miserably failed to provethat in the place of occurrence, there was no blood stain on theearth and the prosecution has miserably failed to get the bloodstained clothe of the deceased. Even during the investigation,inquest and after post-mortem, no convincing reason has been assignedby the prosecution that whether the blood stained clothe worn by thedeceased has been recovered or not. 11.P.W.13 Investigating Officer stated that on 17.03.2004, at8.25 a.m., he arrested the first accused at Thelur to Jayankondammain road, bus stop and she gave a confession, which was recorded inthe presence of the witnesses P.W.8 Govindaraj and one Viswanathanand in the presence of the same, M.O.1 Aruval was seized. As per theevidence of P.W.1, 3 and 4, they caught the first accused red-handedin the place of occurrence and handed over to the InvestigatingOfficer. So there is vital material contradiction between theevidence of P.W.13 Investigating Officer and the eye-witnesses P.W.1,3 and 4 regarding the arrest of the first accused and the same hasnot been proved beyond reasonable doubt by the prosecution. So theabove aspect clearly proved that P.W.1, 3 and 4 are not eye-witnesses. If really P.W.1, 3 and 4 are eye-witnesses, they mayvery well mention the correct place of occurrence and depose aboutthe blood stained clothe in the body of the deceased. It is also truethat even though P.W.13 Investigating Officer, in his evidence,stated that since the first accused Saroja sustained injuries, shewas sent to the Hospital for treatment with medical memo issued byhim. But during the investigation, there is no evidence to showthat how she sustained injuries. As per the criminal jurisprudence,it is the duty of the prosecution to explain that how the firstaccused sustained injuries, but there is no evidence regarding thesame. 12.The learned Sessions Judge, in paragraphs-50, 52 and 53 ofhis judgment, clearly discussed the above aspects in properperspective and came to the correct conclusion that the prosecutionhas not proved the guilty of the accused under Sections 120B readwith 302 I.P.C. beyond reasonable doubt. So the trial Court hasgiven a benefit of doubt in favour of the accused and acquitted thesame. In such circumstances, I do not find any merits in the case ofthe revision petitioner/P.W.1, who is not an eye-witness. Theevidence of P.W.1., who is the father of the deceased, has gone tothe extent of saying that the first accused caught red-handedly andhanded over to investigating agency on the day itself. But, P.W.13Investigating Officer stated that on 17.03.2004 at 8.25 a.m., hearrested the first accused at Thelur to Jayankondam main road bus https://hcservices.ecourts.gov.in/hcservices/ stop and on the basis of the voluntary confession given by the firstaccused in the presence of P.W.8 Govindaraj and one Viswanathan,M.O.1 aruval was seized. So there is a discrepancy in the arrest ofthe first accused. Furthermore, the trial Court pointed out that theprosecution has not been proved the place of occurrence, where theincident was taken place. The evidence of P.W.13 has also falsifiedthe evidence of P.Ws.1, 3 and 4. So the trial Court considered eachand every oral and documentary evidence and came to the correctconclusion. Therefore, I am of the view that the acquittal orderpassed by the trial Court does not warrant any interference. Hence,the revision petition deserves to be dismissed and hence it is herebydismissed.13.In fine,• The Criminal Revision is dismissed.• The acquittal order passed by the Sessions Court, Perambalur, is hereby confirmed. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarkjTo1.The Sessions Judge, Perambalur.2.The The Inspector of Police Kairalabath Police Station Perambalur District.3. The Public Prosecutor, High Court, Madras. CRL.R.C.No. 164 of 2006KSJ {CO}TP/28.4.2011.