Muthusamy v. State rep. by Inspector of Police, Erumaipatti Police Station, Namakkal District

B A I L S L I PThe Appellant/Sole Accused viz., Muthusamy was directedto be released on bail as per order of this Court dated 10.07.2006and made in Crl.M.P.No.1/2006 in Crl.A.No.544/2006 on the file ofthis Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.544 OF 2006Muthusamy ..Appellant/Sole AccusedVs.State rep. byInspector of Police,Erumaipatti Police Station,Namakkal District(Crime No.64/2005) ..Respondent/Respondent This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additional District andSessions Judge, Fast Track Court, Namakkal made in S.C.No.1 of2006, dated 26.05.2006. For Appellant : Mr.D.ShivakumaranFor Respondent : Mr.P.Kumaresan, APP JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional Districtand Sessions Division, Fast Track Court, Namakkal made in S.C.No.1of 2006, whereby the sole accused/appellant stood charged underSections 364, 302 and 201 IPC, tried, found guilty as per thecharges and awarded one year R.I. and to pay a fine of Rs.1000/-,in default to undergo 1 month S.I. under Section 364 IPC, lifeimprisonment and to pay a fine of Rs.2000/-, in default to undergoone month S.I. under Section 302 IPC and 2 months R.I. and to pay a https://hcservices.ecourts.gov.in/hcservices/ fine of Rs.500/-, in default to undergo 15 days S.I. under Section201 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appealcan be stated as follows:a)P.W.1 is the native of Pottireddipatti. His sister was givenin marriage to the appellant/accused. Due to strained relationshipbetween them, she went away along with one Ranganathan leaving herhusband and children. The accused complained about the same toP.W.1, but he did not take any steps to secure her. The accusedmade a challenge that P.W.1 could not live peacefully thereafter.On 3.3.2005, the son of P.W.1 by name Suresh aged 10 years went fortuition to the house of P.W.7, but he did not return. b)P.W.4 saw the accused taking the child at about 7.30 p.m.Later at about 8.00 p.m., P.W.5 found the accused coming back withM.O.2, bag which was taken by the child for tuition. At about 8.00p.m., when P.W.1 returned home, he was informed that Suresh, whowent for tuition, did not return. They made a search in all theplaces. On 4.3.2005, he was informed that a dead body was found inthe Well of one Seeyagounder, under whom P.W.4 was employed fordoing agricultural operations. Immediately, P.W.1 rushed to hishouse and found the dead body of his child. c)He proceeded to the respondent police station and gaveEx.P.1, the complaint to P.W.15, the Sub Inspector of Police. Onthe strength of the same, a case came to be registered in CrimeNo.64 of 2005 under Section 174 Cr.P.C. Ex.P.20, the F.I.R. wasdespatched to the Court. d)P.W.16, the Inspector of Police, on receipt of the copy ofthe F.I.R., took up the investigation, proceeded to the spot andmade an inspection in the presence of the witnesses. He preparedEx.P.2, the observation mahazar and Ex.P.21, the rough sketch.Then, he conducted inquest on the dead body of the deceased in thepresence of the witnesses and panchayatdars and prepared Ex.P.22,the inquest report. Then the dead body was sent to the GovernmentHospital, Namakkal for the purpose of autopsy. e)P.W.8, the Doctor attached to the Government Hospital,Namakkal, on receipt of the requisition, has conducted post-mortemon the dead body of the deceased and has issued Ex.P.6, the post-mortem certificate and Ex.P.7, the final opinion, wherein he hasopined that the deceased would appear to have died of Asphyxia dueto strangulation. f)Pending investigation, P.W.16 arrested the accused on7.3.2005, who came forward to give confessional statement, whichwas recorded in the presence of the witnesses. The admissible partof the same was marked as Ex.P.3. Pursuant to the same, the accusedproduced M.Os.1 to 3, slate, bag, books and notebooks, which wererecovered under a cover of mahazar. Then, the case was convertedfrom Section 174 Cr.P.C. to Sections 302 and 201 IPC. Ex.P.23, the https://hcservices.ecourts.gov.in/hcservices/ alteration report was sent to the court. The accused was sent forjudicial remand. P.W.16 examined the witnesses and recorded theirstatements. On completion of the investigation, he filed the finalreport. 3.The case was committed to the Court of Sessions andnecessary charged were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 16 witnessesand also relied on 23 exhibits and 6 M.Os. On completion of theevidence on the side of the prosecution, the accused was questionedunder Section 313 Cr.P.C. as to the incriminating circumstancesfound in the evidence of prosecution witnesses, which he flatlydenied as false. On the side of the defence, 2 witnesses wereexamined and 4 documents were marked. The trial court, onconsideration of the submissions put forth and scrutinizing thematerials available, took the view that the prosecution has provedthe case beyond reasonable doubt and found the appellant/accusedguilty and awarded punishments as referred to above. Hence thisappeal at the instance of the appellant.4.Advancing arguments on behalf of the appellant, the learnedcounsel has made the following submissions:a)The occurrence, according to the prosecution, has takenplace on 03.03.2005 after 5.30 p.m. The prosecution had no directevidence to offer, but it relied on three circumstances. Firstly,P.W.4 saw the accused taking the child and secondly, P.W.5 foundthe accused alone coming along with the bag, which was actuallytaken by the child when he went for tuition. Thirdly, the recoveryof M.Os.2 and 3 from the accused pursuant to the confessionalstatement alleged to have been given by him. The learned counselfor the appellant would submit that all these three circumstanceshave not actually been proved. So far as P.W.4 was concerned, hehas categorically stated that he is employed in the field of oneSeeyagounder. As per his evidence, he saw the accused taking thedeceased child at about 7.30 p.m. But, he has categoricallyadmitted at the time of cross examination that after finishing hiswork, he used to start from the field at about 6.00 p.m., sincethere was no light facility. Hence he could not explain as to howhe happened to be there in the field at about 7.30 p.m. when heclaimed to have seen the accused along with the child. Further, hehas also admitted that on the next day, namely on 4.3.2005, hecommenced his work at about 9.00 a.m. and he was also taking waterfrom the same Well, in which the dead body was found and he hascategorically deposed that no dead body was found till he left thefield on 4.3.2005 and thus, it would clearly falsify the story ofthe prosecution. b)Apart from that, so far as P.W.5 was concerned, his evidenceshould not be relied upon, since he has categorically admitted thatat about 8.00 p.m. when he was coming from the field, it was sodarkness and he could not see anybody and hence he could not haveseen the accused coming with the bag. He has further deposed thateven after coming to know that the child was not found, he did not https://hcservices.ecourts.gov.in/hcservices/ tell to anybody that he saw the accused. Thus, it would be quiteclear that he could not have seen the accused as claimed by him. c)Thirdly, the claim of the prosecution that M.Os.2 and 3,bags and notebooks were recovered from the accused on production,should have been rejected. The only witness examined by theprosecution in this regard was P.W.6. Though the prosecutionclaimed that they were recovered on 7.3.2005, the statement of thesaid witness reached the court on 27.5.2005. Had it been true thatthey were recovered on 7.3.2005, there was no impediment forsending those M.Os. or the statement of P.W.6 to the courtimmediately or within a reasonable time, but it has reached thecourt only after a period of two months and no explanation wasforthcoming for the same. Above all, the medical evidence wasagainst the prosecution story. According to the post-mortem Doctor,the death would have caused between 10.00 a.m. to 4.30 p.m. on4.3.2005 and not before that. All would go to show that theprosecution has miserably failed to prove its case. d)Further, the learned counsel would submit that 15 days priorto the occurrence, the daughter of the accused was kidnapped by twopersons from Musiri and they were caught red-handed and there was apanchayat and penalty was imposed and they have paid the amount andthus, they were aggrieved against the accused. It could be seenfrom the evidence adduced through the defence witness that thechild of the accused was also equal aged that of the deceased childand they were taking tuition from P.W.7 and in order to wreakvengeance, they decided to take the child of the accused, butinstead they have taken the child of P.W.1 and the investigationwas not done properly in that line and thus, the prosecution hasmiserably failed to prove its case and hence the accused/appellantis entitled for acquittal.5.The court heard the learned Additional Public Prosecutor onthe above contentions and has paid its anxious attention over thesame. 6.It is not in controversy that the dead body of Suresh, aged10 years, the son of P.W.1, was taken from the Well and afterpreparation of the inquest report, the dead body was subjected topost-mortem by P.W.8, the Doctor, who has given his categoricalopinion in the post-mortem certificate that the child would appearto have died of Asphyxia due to strangulation. Ante-mortem injurywas also noticed. The fact that the child died out of the saidcause was never questioned by the appellant and hence no impedimentis felt by the trial court in recording so, which has got to beaffirmed. 7.In order to prove the charges levelled against theappellant/accused, the prosecution had no direct evidence to offer.As could be seen from the available materials, the prosecutionrested its case entirely on circumstantial evidence. Thosecircumstances were three in number. According to P.W.4, he saw theaccused taking the child at about 7.30 p.m. According to P.W.5, at https://hcservices.ecourts.gov.in/hcservices/ about 8.00 p.m., he found the accused coming with the bag, whichwas taken by the child. Pursuant to the confessional statement ofthe accused, M.O.2, bag and M.O.3, books and notebooks of the childwere recovered from the accused/appellant on 07.03.2005. 8.Needless to say that in a given case like this where theprosecution rested its case on circumstantial evidence, it mustplace and prove all circumstances without a snap and thosecircumstances must be pointing to the hypotheses that except theaccused no one could have committed the crime. If this test isapplied, the court is afraid whether it can agree with the findingsof the trial court. So far as the evidence of P.W.4 is concerned,it is true, at the time of chief examination, he has deposed thathe saw the accused taking the child at about 7.30 p.m. when he wasin the field. But at the time of cross examination, he hascategorically admitted that he used to leave the field at about6.00 p.m., since there was no light facility in order to workthereafter. But, he had no explanation to offer as to how hehappened to be in the field at 7.30 p.m. on that day. He has alsoadmitted that he went for agricultural operations on 04.03.2005 andhe was taking water from the very same Well, in which the dead bodyof the child was found and taken out, but he has stated that nodead body was found when he was present at the field. Thus, itwould be quite clear that the dead body of the child could not havebeen found in the Well, from which it was actually taken out duringthe relevant time. Thus, it would cast a doubt on the prosecutioncase. 9.So far as the evidence of P.W.5 was concerned, it has got tobe rejected in view of the admission made by P.W.5 that it wasutter darkness and he could not identify the persons, who weregoing through there. If so, he could not identify the accused also.Therefore, the evidence of P.W.5 that he found the accused crossingthe field cannot be accepted. Equally, the claim of the prosecutionas to the recovery of M.Os.2 and 3, namely bag, books andnotebooks, pursuant to the confessional statement of the accused,cannot be accepted. The only witness examined for the arrest,confessional statement and the recovery was P.W.6. Though theInvestigator claimed that the statement of P.W.6 was recorded on7.3.2005, it has reached the court on 27.5.2005. Had it been truethat such a statement was recorded and M.Os.2 and 3 were recoveredon 7.3.2005, there could not be any impediment for the Investigatorto send the same to the court immediately, but for a period of 2months, they were not sent and no explanation was forthcoming fromthe Investigating agency. Therefore, no evidentiary value could beattached to this piece of evidence. Barring these threecircumstances, the prosecution had nothing to offer. In theconsidered opinion of the court, though the prosecution claimedthree circumstances, through which it made an attempt to prove thecase, it has failed to prove those circumstances. The prosecutionhas miserably failed to bring home the guilt of the accused byplacing sufficient and acceptable evidence indicating the nexusbetween the accused and the crime. Hence the judgment of the trialcourt has got to be made undone by upsetting the same. https://hcservices.ecourts.gov.in/hcservices/

10.Accordingly, the judgment of conviction and sentenceimposed on the appellant by the trial court is set aside and theappellant is acquitted of the charges levelled against him. Thebail bond if any executed by the appellant shall stand terminatedand the fine amount if any paid shall be refunded to him.Accordingly, this criminal appeal is allowed. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1. The Additional District and Sessions Judge, Fast Track Court, Namakkal.2. -do- Through The Principal Sessions Judge, Namakkal.3. The Judicial Magistrate No.I, Namakkal.4. -do- Through The Chief Judicial Magistrate, Namakkal.5. The Superintendent, Central Prison, Coimbatore.6. The Inspector of Police, Erumaipatti Police Station, Namakkal District.7. The Additional Public Prosecutor, High Court, Madras.+ 1 c.c. to Mr. D. Shivakumaran, Advocate. S.R.No.706. CRL.A.NO.544 OF 2006GV (CO)GSK 19.01.2009.