IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 04.01.2017 CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE N.AUTHINATHAN Crl.A.No.405 of 2016 G.Pavadai ... Appellant vs.
State, rep.by The Inspector of Police, Thiruvennainallur Police Station, Villupuram District ... Respondent Criminal appeal preferred under Section 374(2) Cr.P.C., against the judgement dated 30.12.2015 passed by the Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Villupuram, in S.C.No.246 of 2014.
For Appellant : Mr.J.Agni Selvaraju For Respondent : Mr.P.Govindarajan,Addl.P.P.
JUDGMENT (Judgement of the Court was delivered by S.Nagamuthu,J.) The appellant is the sole accused in Sessions Case No.246 of 2014, on the file of the Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Villupuram. He stood charged for the offence under Section 302 of the Indian Penal Code. By judgement dated 30.12.2015, the trial Court convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default, to undergo simple imprisonment for one year. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
(a) The deceased in this case was one Mrs.Selvi. The accused is her husband. The marriage between them was celebrated 20 years before her death. Both the accused and the deceased were working in a brick-kiln. Thus, they were eking out their livelihood only by coolie work. In course of time, the accused had developed intimacy with one Malar and brought her to his house. Thus, all the three were residing in the same house. This resulted in frequent quarrels between the accused and the deceased. This is stated to be the motive for the occurrence.
(b) It is stated that on 4.08.2012, at about 11.00 p.m., when the deceased alone was at her house, the accused attacked her with a cricket bat on her head, face and other parts of the body and fled away from the scene of occurrence. The occurrence was not witnessed by any one. P.W.2, is the neighbour of the deceased. She found the deceased lying just infront of her house. The deceased was vomiting and she also passed motion. Suspecting some foul play, P.W.2 immediately informed P.W.1 and then took the deceased to the Government Hospital, Thirukoilur, from where, as advised by the Doctor, she took her to the Government Hospital at Mundiyampakkam Government Hospital, from where, she was taken to JIMPER Hospital Puducherry. There also, the doctors declared that her condition was very serious.
(c) In the meanwhile, P.W.1, the brother of the deceased had gone to JIMPER Hospital. He brought the deceased to his native place. At about 7.00 p.m., on the same day, she died. Thereafter, P.W.1 went to Thiruvennainallur Police Station and made a complaint at about 10.00 a.m. on 7.8.2012. The then Sub- Inspector of Police (P.W.9) registered a case on the said complaint in Crime No.606 of 2012, under Section 174(1) Cr.P.C. at 10.00 a.m. on 7.8.2012. Ex.P1 is the complaint and Ex.P6 is the F.I.R.
(d) The case was taken up for investigation by P.W.11. He went to the place of occurrence, prepared an observation mahazar and a rough sketch, in the presence of witnesses. He held inquest on the body of the deceased between 12.00 noon and 2.00 p.m on the same day and forwarded the body for post-mortem. P.W.10-
Dr.Manivannan conducted autopsy on the body of the deceased on 7.8.2012 at about 4.15 p.m. He found the following injuries.
"A female body lying on her back symmetrical Rigour Mortis present an four limbs with external injury cut 2 cm in left side of upper face. Eyes, mouth closed, teeth intact. Thorax ribs intact lungs-both side normal in size cut section-conjested. Heart normal in size of and shape left ventricle contain 80 ml right ventricle contains 20 ml blood.
Abdomen Stomach contain 100 ml of yellow colour fluid mucosa congested. Liver Normal in size and shape cut section congested spleen normal in size and shape cut section congested. Kidney both side normal in size and shape cut section congested. (n.c) distent with gas utrus empty. Pelvic, spinal-intact, hyoid - intact.(n.c) normal.
Head (n.c.) contusion over the under surface of scalp. left tronto tempor parietal region Membrance-intact brain-SDH. Over left Fronto temporo patietal region thin layer of SAH present cut section congested."
Ex.P8 is the post-mortem certificate. He gave opinion that the deceased died due to shock and haemorrhage due to multiple injuries found on the body. He further opined that the injuries found on the body of the deceased could have been caused by a cricket bat.
(e) The investigation was thereafter taken over by P.W.12. When investigation was in progress, it is alleged that the accused appeared before P.W.7, the then Village Administrative Officer of the Vadamarudhur, on 08.08.2012, at 1.00 p.m. The accused wanted to confess. Having satisfied that the accused was in a voluntary mood to confess, he allowed him to orally confess.
P.W.7 reduced the said confession to writing under Ex.P3. Then, along with the said confession, he took the accused to the Police Station and produced him before P.W.12. P.W.12 arrested the accused. While in custody, he made voluntary confession, in which, he disclosed the place where he had hidden the cricket bat. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced M.O.1, the cricket bat. P.W.12 recovered the same. On returning to the police station, he forwarded the accused to the Court for judicial remand and handed over the material objects also to the Court. On completing the investigation, he laid a charge-sheet against the accused.
3. Based on the above materials, the trial Court framed charge against the accused under Section 302 of the Indian Penal Code. The accused denied the same. In order to prove the case, on the side of the prosecution as many as 12 witnesses were examined, 15 documents were exhibited, besides one material object. Out of the said witnesses, P.W.1 is the brother of the deceased. He has stated that he heard about the occurrence, went to the hospital and since the condition of the deceased was bad, she was taken back to his house and at about 7.00 p.m., the deceased died at his house. He has also spoken about the complaint made by him. P.W.2, the neighbour of the deceased has stated that at about 6.00 a.m. when she came out of her house, she found the deceased lying just infront of her house. She has passed motion and also vomiting. Suspecting some foul play, she informed P.W.1 and then admitted the deceased in hospital. P.W.3 is yet another neighbour. He has spoken about the illicit relationship between the accused and one Malar. P.W.4, a neighbour of the deceased, has stated that the deceased was lying infront of her house. P.W.5 has stated that on hearing about the occurrence, when he went to the house of the deceased, the deceased was taken in an ambulance to the hospital. P.W.6 has spoken about the preparation of observation mahazar and the rough sketch. P.W.7 has spoken about the extra judicial confession allegedly made by the accused. He has also spoken about the arrest of the accused and the confession made by him and the consequential recovery of M.O.1 from his possession. P.W.8 has stated that he took the dead body and handed over the same to the Doctor for post-mortem. P.W.9 has spoken about the registration of the case. P.W.10 has spoken about the post-mortem conducted by him. P.Ws.11 and 12 have spoken about the investigation done and the final report filed.
4. When the above materials were put to the accused, he denied the same as false. However, he did not choose to examine any one on his side nor mark any document. His defence was a total denial.
5. Having considered all the above, the trial Court convicted the accused, as detailed in first paragraph of this judgement and that is how the accused is before this Court.
6. We have heard the learned counsel for the appellant and also the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
7. In this case, as we already narrated, the prosecution relies only on the extra judicial confession, said to have been made by the accused to P.W.7, on 8.8.2012., whereas, the occurrence was on 7.8.2012.
8. The learned counsel for the appellant would submit that the accused would not have made such confession at all to P.W.7. The learned counsel would further submit that even the trial Court has disbelieved the same.
9. We find force in the argument of the learned counsel.
P.W.7, during cross-examination, has admitted that Ex.P3, the extra judicial confession, said to have been made by the accused to him, is in the handwriting of P.W.12, which would go to prove that the extra judicial confession (Ex.P3) was recorded only by P.W.12, in the presence of P.W.7. Therefore, this extra judicial confession is hit by Section 25 of the Indian Evidence Act and thus, it cannot be believed. The trial Court has disbelieved the same on the ground that the accused would not have chosen P.W.7, who is a total stranger to him, to confess. On this score also, the extra judicial confession cannot be believed.
10. The trial Court has however convicted the accused on the ground that the accused has no explanation about the manner in which the deceased had died. The said view taken by the trial Court is not correct in view of the fact that there is no evidence at all that the accused was at his house on the crucial date. When there is no evidence that he was available at his house, at the time of occurrence, the question of expecting him to explain as to how the deceased sustained injuries does not arise. Apart from the above, there is no other evidence against the accused, except motive.
11. In our considered view, the prosecution has not established a strong suspicion against the accused. The possibility of the deceased, who was just in front of her house, having been killed by somebody else cannot be ruled out. Above all, the earliest statements made by the witnesses to the doctor at Thirukoilur, then at Mundiyampakkam Government Hospital, then at JIMPER Hospital, Puducherry have not been placed, before the Court. The details of the treatment given to the deceased is also not before the Court. No doctor, who has treated the deceased, either at Government Hospital at Thirukovilur, or at Mundiyampakkam Government Hospital or at Puducherry, also was examined. Therefore the condition of the deceased from the time she was admitted in the hospital till her death is not proved. For these reasons, we hold that the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellant is entitled for acquittal.
12. In the result, this criminal appeal is allowed; the conviction and sentence imposed on the appellant by the trial Court are set aside and the appellant/accused is acquitted. Bail bond, if any, executed by him shall stand cancelled. Fine amount, if any paid by him is ordered to be refunded forthwith.
msk (S.N.J.) (N.A.N.J.) 04 January 2017 Index:Yes/No Internet:Yes/No To
1. The Inspector of Police, Thiruvennainallur Police Station, Villupuram District
2. The Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Villupuram
3. The Public Prosecutor, High Court, Madras S.NAGAMUTHU,J.
and N.AUTHINATHAN,J.
msk Crl.A.No.405 of 2016 04.01.2017 http://www.judis.nic.in