THE HONOURABLE MR v. State rep. ByInspector of PoliceBommidi Police Station

BAIL SLIPThe Appellant/Accused namely Loudusamy was directed to be released onbail in Crl.M.P.No. 2551/01 in Crl Appeal No. 381/01 dated 26/4/2001 onthe file of this Hon'ble Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 11.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.381 of 2001Loudrusamy .. Appellant/Accusedvs.State rep. ByInspector of PoliceBommidi Police Station,Cr.No.391/96.. Respondent/complainant This appeal is filed under Section 374 of Cr.P.C. against theJudgment in S.C.No.65 of 2000 dated 30.03.2001 on the file of thePrincipal Sessions Judge, Dharmapuri at Krishnagiri. For Appellant : Mr.K.V.SridharanFor Respondent : Mr.V.R.Balasubramaniam Addl.Public Prosecutor JUDGMENTThis appeal has been preferred against the Judgment in S.C.No.65 of2000 on the file of the Principal Sessions Judge, Dharmapuri atKrishnagiri.2. The short facts of the case of the prosecution are that due toprevious enmity on the ground that the accused had raped his wife. On thedate of occurrence, while the accused and P.W.8 the wife of the accusedwere picking twigs,the deceased made yet another attempt to outrage themodesty of P.W.8, the wife of the accused, the accused took an aruval andassaulted the deceased all over his body causing instantaneous death.3. The case was taken on file by the learned Judicial MagistrateNo.II,Dharmapuri ,after furnishing copies under section 207 Cr.P.C., thelearned Judicial Magistrate had committed the case to the court ofSessions under Section 209 Cr.P.C. On appearance of the accused on https://hcservices.ecourts.gov.in/hcservices/ summons, the learned Sessions Judge has framed charges against theaccused under Section 302 of IPC and when the offence was explained to theaccused, he pleaded not guilty.4. Before the trial Court, P.Ws 1 to 11 were examined. Exs P1 to P16were exhibited and M.Os 1 to 10 were marked.4a) P.Ws.1,2,4 who are the eye witnesses, have failed to support thecase of the prosecution and hence they were treated as hostile witnesses.P.W.3 is not an ocular witness. He would depose to the fact that he sawthe accused running away from the place of occurrence with a weapon.4b. P.W.5 is the doctor, who had conducted an autopsy on the corpseand issued Ex P3 postmortem certificate. The Doctor has opined that thedeceased would have died some 20 to 22 hours prior to the autopsy.4c.P.W.7 is the recovery mahazar witness. P.W.8 is the wife of theaccused, who was also treated as hostile witness. P.W.9 and P.W.10 are theofficial witnesses. P.W.11 is the Investigating Officer, who on the basisof the complaint preferred by P.W.1, had registered a case underCr.No.391/98 under Section 302 of IPC. Ex P13 is the First InformationReport. According to him, due to heavy rain, he could not visit the placeof occurrence immediately. But he visited only in the next morning ie., on17.7.1998 and prepared Ex P4 Observation Mahazar in the presence of P.W.6and recovered M.O.2 blood stained earth and M.O.3 sample earth and alsoM.O.1 lungi under Ex P5 mahazar. Ex P14 is the rough sketch drawn byP.W.11, who had conducted an inquest on the same day from 7.30 a.m., to11.00 a.m., in the presence of the witnesses. Ex P16 is the inquestreport. According to him, he arrested the accused on 18.7.1998 at about4.00p.m., at Salem -Dharmapuri Road near Thoppur Village and has recordedthe voluntary confession statement of the accused in the presence ofP.W.7. The admissible portion of the confession statement of the accusedis Ex P8. The accused had taken them to railway bridge near Periyar damand took out M.O.4 weapon and M.O.5 shirt from the hidden place which wasrecovered under Ex P6 Mahazar in the presence of P.W.7. After recordingthe statement of the witnesses and after completing the investigation,P.W.11 has filed the charge sheet against the accused on 16.11.1998 underSection 302 of IPC before the learned Judicial Magistrate No.2,Dharmapuri, at Krishnagiri.5. When the incriminating circumstances were put to the accused, theaccused would say that as a self defence , he has assaulted the victimwith the weapon and that the case has been foisted against him by thepolice and the occurrence had not occurred as stated by the prosecution.6. After scanning the evidence both oral and documentary,the learnedSessions Judge has held that the accused is guilty under Section 304 (i)IPC and convicted and sentenced him to undergo four years rigorousimprisonment and slapped a fine of Rs.1000/- with default sentence.Aggrieved by the findings of the learned Sessions Judge, accused has https://hcservices.ecourts.gov.in/hcservices/ preferred this appeal.7. Now the point for determination in this appeal is whether theconviction and sentence under Section 304(1) of IPC against the accusedis sustainable for the reasons stated in the memorandum of appeal?8. Heard Mr.K.V.Sridharan, learned counsel for the appellant andMr.V.R.Balasubramaniam, learned Additional Public Prosecutor for therespondent and considered their rival submissions.9.The Point:P.W.1,P.W.2,P.W.4 and P.W.8, who are the eye witnesses, have not supportedthe case of the prosecution and hence they were treated as hostilewitnesses. P.W.3 is not an ocular witness. According to him, he saw theaccused running away from the place of occurrence with a weapon. Relyingon the evidence of P.W.8, in the chief examination, the learned SessionsJudge has come to a conclusion that an offence under Section 304 (i) IPChas been attracted against the accused. P.W.8, who is none other thanthe wife of the accused, in the chief examination would depose that asthough she had witnessed the occurrence, the prosecution has allowed herto depose up to the point, when she denied the fact that she was notexamined by the Investigating Officer. In the chief examination, P.W.8till she was treated as a hostile witness, would depose that in herpresence, her husband/accused had assaulted the victim with M.O.4 Aruval. 9a. The motive for the occurrence was also spoken to by P.W.8.According to her, the accused had once raped her and also transmittedvenereal disease to her and on the occurrence date, when she was pickingtwigs along with her husband, the accused herein, the victim came thereand made another attempt to molest her and after hearing her distresscall, the accused immediately rushed to her rescue and when the accusedprevented the deceased from molesting P.W.8, the victim took a stone andattempted to kill the accused and in self defence, he with M.O.4 Aruvalhad inflicted injuries on him, which resulted in the death of the victim.But after treating P.W.8 as hostile witness, the learned PublicProsecutor put the question in the cross examination that at the time ofoccurrence, P.W.8 was not in the place of occurrence, but she was in herhouse. A perusal of statement under Section 161(3) of Cr.P.C. alsoreveals that even before the police, at the time of investigatiion, shehas stated that only after hearing the occurrence, she rushed to the placeof occurrence from her house. Under such circumstances, the evidence ofP.W.8 in the chief examination is not of any use to prove the case of theprosecution. If the evidence of P.W.8 goes then we left with no ocularwitness in this case. P.W.3 is not an ocular witness, but only acircumstantial witness. 9b. Apart from this, the case of the prosecution hinges upon therecovery of the weapon from the accused on his confession. According toP.W.11, the accused was arrested by him on 18.7.1998 at about 4.00p.m.near the junction of Thoppur village in Salem Dharmapuri main road andthat he had recorded the voluntary confession statement of the accused in https://hcservices.ecourts.gov.in/hcservices/ the presence of P.W.7. But even according to the evidence of P.W.1 andP.W.8, the version of P.W.11 cannot be true because according to P.W.1 hesaw the accused in the police statement next day morning ie., on 17.7.1998.9c. According to P.W.8 , she and the accused surrendered beforethe Deevatupatti Police Station on 16.7.1998 and narrated the incidentbefore them and that they detained both of them through out the night inthe station and produced them on the following morning at 10.00 a.m beforethe Bommidi Police. So from the evidence of P.W.1 and P.W.8 the recoveryunder Section 27 of the Evidence Act by P.W 11 also false to the ground.10. The learned Additional Public Prosecutor would draw the attentionof this Court to the statement made by the accused under Section 313 ofCr.P.C. The cardinal principle of Criminal Jurisprudence is that theaccused need not prove his innocence. The burden is only on theprosecution to prove the guilt of the accused. Even though in thestatement under Section 313 of Cr.P.C. the accused would say that heassaulted the victim only by way of private defence. He would emphaticallysay at the end that this is a put up case by the police. At this juncture,it is pertinent to note that at the time when the charge was framed bythe learned Sessions Judge and was explained to him, he would deny thecharge. He has not admitted the charge. So I am of the view that only onthe basis of the admission in statement under Section 313 of Cr.P.C. theaccused cannot be convicted in the absence of any reliable evidence on theside of the prosecution.11. Under such circumstances, I do not find any reason to uphold thefindings of the learned Sessions Judge in S.C.No.65 of 2000 on the file ofthe Principal Sessions Judge, Dharmapurai at Krishnagiri. The point isanswered accordingly.12. In the result, the appeal is allowed , setting aside theJudgement in S.C.No.65 of 2000 on the file of the Principal SessionsJudge, Dharmapuri at Krishnagiri and the accused is acquitted from thecharges levelled against him The fine amount paid by the accused shall berefunded to the accused. The bail bond executed by the appellant shallstand cancelled.sgSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To, 1. The Principal Sessions Judge, Dharmapuri at Krishnagiri2. The Judicial Magisitrate No.11, Dharmapuri3 -do- the Chief Judicial Magistrate,Dharmapuri at Krishnagiri4. The Superintendent of Central Prison, Vellore.5. The Public Prosecutor, High Court, Madras6. The Inspector of Police, Bommidi Police Station.+ One cc to M.r K.V. Sridharan Advocate sR 34154NSM (co)sgCrl.A.No.381 of 2001