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2009 DIGILAW 2331 (MAD)

Rajagopal v. State rep. By Inspector of Police

2009-07-13

R.BANUMATHI, R.MALA

body2009
JUDGMENT :- R. Banumathi, J. This appeal arises out of the verdict of conviction in S.C.No.165/2008 dated 112. 2008 on the file of the First Additional Sessions Judge [PCR], Tiruchirappalli convicting the appellant-accused U/s.302 IPC and sentencing him to undergo life imprisonment and also imposing fine. 2. Briefly statedcase of prosecution is as follows:- PW1-Chandrasekaran has been working as Receptionist in S.N.Tower Lodge at Srirangam. A person who occupies the room has to sign the ledger in the presence of PW1-Receptionist. On 112. 2003, one male and female booked the room and Room No.106 was allotted to them. PW1 identified the Accused-Rajagopal as the person who occupied Room No.106 on 112. 2003. Accused has mentioned his name as Jeniffer and filled the ledger. PW1 saw them coming out of the Room two or three times. His duty time was from 9.00 p.m., to 9.00 a.m... On 112. 2003, the Room was not vacated and the occupants continued to stay in the Room. On 112. 2003, PW1 came to the work and when he went to the Room No.106 at 9.30 p.m., he found the room locked. The person who occupied the Room had paid only Rs.300/- as advance. Room rent for one room was Rs.190/-per day. Since occupants continued to occupy the Room and fresh advance had to be paid, PW1s owner permitted him to open the Room with duplicate key. On opening the Room, PW1 found a body of the lady who came along with the accused. After informing his owner, PW1 informed the police and the Police came to the occurrence place. PW3-Muthu [Room boy] has also identified the accused as the one who occupied Room No.106. 3. PW1 went to Srirangam Police Station and lodged Ex.P1-Complaint at 7.15 a.m., on 112. 2003. On the basis of Ex.P1, the Sub-Inspector of Police, Pandian, registered the case in Crime No.835/2003 U/s. 174 Cr.P.C. Ex.P.14 is the F.I.R. 4. PW.20 Inspector of Policehad taken up investigation. PW20 inspected the scene of occurrence in the presence of PW14 - V.A.O and his Assistant. PW20 prepared Ex.P2-Observation Mahazar and Ex.P15-Rough Sketch. In the presence of panchayatdars, witnesses were examined and inquest was held on the body of the deceased Fathima. Ex.P16 is the Inquest Report. After inquest, the body was sent to mortuary. Since the identity of the body was not known, body was kept in the mortuary for two days. PW20 prepared Ex.P2-Observation Mahazar and Ex.P15-Rough Sketch. In the presence of panchayatdars, witnesses were examined and inquest was held on the body of the deceased Fathima. Ex.P16 is the Inquest Report. After inquest, the body was sent to mortuary. Since the identity of the body was not known, body was kept in the mortuary for two days. On 112. 2003, PW20 made requisition to conduct Postmortem on the body of the deceased. PW13-Dr.Karthikeyan conducted autopsy and noticed injuries on the body of the deceased Fathima as follows: (i) Dark brown colour abrasions, on the right side of forehead 1 cm X 0.5 right side of upper lip; (ii) 1 cm X 0.5 cm right side of lower jaw, 1 cm X 1 cm left side of lower jaw, (iii) 2 cm X 1 cm left upper eyelid 3 cm X 1.5 cm; on the (nc) of the nose 0.5cm X 0.5cm each. After receipt of viscera report, PW.13 issued Ex.P9 Postmortem Certificate. After the Postmortem, bloodstained clothes of the deceased, MOs.14 to 18 were seized from the body of the deceased. 5. On receipt of Postmortem Certificate Ex.P9, PW20-IO altered the Section to 302 IPC on 11. 2004. Thereafter, PW.20 was transferred. 6. PW.21-Inspector of Police had taken up further investigation. On 4. 2007, PW21 arrested the accused in the Vulveethi [cs;tPjp ] of Thiruvanaikoil in the presence of PW14-V.A.O. of Thimmaraya Samudram and his Assistant. On being interrogated, accused had voluntarily given confession statement. In his confession statement, the accused stated that he had hidden a key chain of Room No.106, fake SBCID Identification Card in his residence. Based on his confession statement MO-20 key along with chain and MO21-fake Identification Card were recovered under Ex.P12-Seizure Mahazar. 7. Since PW21-IO was transferred, PW.22 Inspector of Police had taken up further investigation. After completion of due investigation, PW.22 filed final report against the accused on 17. 2007 under Section 302 IPC. 8. To substantiate the charges against the accused, PWs.1 to 22 were examined. Exs.P1 to P22 and MOs.1 to 21 were marked. Accused was questioned U/s. 313 Cr.P.C. about the incriminating evidence and circumstances. Accused denied all of them and stated that police have developed enmity towards him and due to that enmity, police foisted a number of cases against him and the present case is one such case falsely foisted against him. 9. Accused was questioned U/s. 313 Cr.P.C. about the incriminating evidence and circumstances. Accused denied all of them and stated that police have developed enmity towards him and due to that enmity, police foisted a number of cases against him and the present case is one such case falsely foisted against him. 9. Upon consideration of oral and documentary evidence, learned First Additional Sessions Judge held that the evidence of PW1 as to the identification of the accused is corroborated by the evidence of PW3-Room Boy and that the accused occupied Room No.106 on 112. 2003 is acceptable and that they are trustworthy witnesses. The learned First Additional Sessions Judge also held that the arrest of the accused and recovery MOs.20 and 21 are incriminating circumstances against the accused. Observing that non-production of the ledger would not materially affect the prosecution case learned First Additional Sessions Judge held that the prosecution has established the guilt of the accused beyond reasonable doubt and convicted the appellant/accused and sentenced him as aforesaid. 10. Case of prosecution is based upon circumstantial evidence. In case of circumstantial evidence, it is settled law that circumstances from which conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature point to the guilt of the accused. In all cases based upon circumstantial evidence and in this case as well the point falling for considering is whether the circumstances are proved and whether the proved circumstances unerringly point to the guilt of the accused. 11. Appellant-Accused who is serving the sentence in Jail appeared before us and personally argued the matter. Challenging the verdict of conviction, appellant-accused inter alia raised the following contentions:- Prosecution has not proved that accused stayed in S.N. Towers lodge on 111. 2003 in Room No.106. Identification of accused by PWs.1 and 3 is not trustworthy. Prosecution has not convincingly established that the death is due to asphyxia due to smothering. Arrest and confession of the accused on 04. 2007 is not credit worthy. 12. Taking us through the evidence, Mr.Daniel Manohar learned Additional Public Prosecutor submitted that evidence of PW1-Receptionist and evidence of PW3-Room boy identifying the accused was rightly accepted by the trial court as reliable. Drawing our attention to the recovery of MO20-Key chain of Room No.106, learned Addl. 2007 is not credit worthy. 12. Taking us through the evidence, Mr.Daniel Manohar learned Additional Public Prosecutor submitted that evidence of PW1-Receptionist and evidence of PW3-Room boy identifying the accused was rightly accepted by the trial court as reliable. Drawing our attention to the recovery of MO20-Key chain of Room No.106, learned Addl. Public Prosecutor submitted that when the accused was identified as the person who stayed with the deceased Fathima, it is for the accused to explain the homicidal death of the deceased and in the absence of any explanation, trial court convicted the appellant-accused U/s.302 IPC and the verdict of conviction warrants no interference. 13. Main defence plea is that a false case was foisted against the accused. According to the accused as document writer, he was writing Petitions against the Police and alleging possession of fake identification card, some cases were foisted against the accused and the Police were inimical towards the accused and due to that animosity, Police have foisted a false case against him. In support of his contention on various aspects, appellant-accused relied upon number of decisions ¬1993 Crl LJ 408 [Nallamsetty Yanodaiah and others v. State of AP]; AIR 1966 Cal 620 [Sukhraji Bhaj v. Calcutta State Transport Corporation]; 1979 Crl LJ 919 (SC) [Kannan and others v. State of Kerala]; 2000 Cri LJ 4552 [Har Pal Singh and etc. v. State of UP]; 1993 Cri lJ 2609 [State of Karnataka v. Bheem-appa and others]; (1983) 1 SCC 379 [Maula Bux and others v. State of Rajasthan]; 1992 SCC (Crl) 701 [Bhupendra Nath Prasad v. State of Bihar]; 2003 (3) CTC 584 [Gopal and others v. State of TN]; 1993 Cri LJ 1648 [Sarojini v. State of MP]; 1992 Cri LJ 861 (SC) [Sakharam v. State of MP]; AIR 1991SC 269 [Hardayal and another v. State of Rajasthan]; 1998 Cri LJ 3293 and [Rajendra kumar v. State of UP]. 14. Even at the out set, it is to be pointed that the occurrence was on 112. 2003. Accused was arrested on 04. 2007. There is a delay about 3½ years in arresting the accused. PWs.1 and 3 have identified the accused in the court nearly five years after the occurrence. 14. Even at the out set, it is to be pointed that the occurrence was on 112. 2003. Accused was arrested on 04. 2007. There is a delay about 3½ years in arresting the accused. PWs.1 and 3 have identified the accused in the court nearly five years after the occurrence. In his evidence, PW1 has stated that in 2007, accused had again come to S.N. Towers lodge to book a room and at that time he gave intimation to the Police and Police had arrested the accused. PW3-Room boy of S.N. Towers Lodge identified the accused in the Court. PW2-Manager of S.N. Towers lodge was not able to identify the accused. 15. In view of the enormous delay in arresting the accused, it is incumbent upon the prosecution to establish by cogent evidence that accused stayed in S.N. Towers lodge on 112. 2003. In Ex.P1-Complaint and in Ex.P14-FIR, it is stated that the person who came to the lodge along with deceased was aged 30 years and described as "Rkhh; 30 taJila fUg;ghft[k;, Fz;lhft[k; nUe;j xU Mz; Bgz;Lk;, rl;ila[k;....". In 2008, when the accused was questioned U/s.313 Cr.P.C., accused has stated his age as 50 years which means that in 2003 the accused must have been aged about 45 years. There is great variation in the age of the accused and the person allegedly stayed with the deceased Fathima on 112. 2003. 16. Inhis evidence, PW1-Receptionist has stated that whenever a person books a room, he has to make entry in the Ledger in his presence. PW1 has further stated that on 112. 2003 at 7.10 A.M., Room No.106 was booked and that accused has made entry in the Ledger stating that his name was "Jeniffer". PW1 has further stated that on 112. 2003 only one room was booked - "Room No.106 in S.N. Towers lodge. Ledger of S.N. Towers lodge was also seized under Ex.P5-Mahazar on 112. 2003. In the Ledger, booking of Room No.106 the entry said to have been made by the accused. In Ex.P5-Mahazar, recovery of Ledger has been stated as under:- Form 11 (See Rule 3 and 5) Daily Account of Occupancy of Room and Collection of Tax 17. From Ex.D1-Form 95, it is also seen that Ledger of S.N. Towers lodge seized by the Police was produced before the Judicial Magistrate No.III, Tiruchirappalli on 01. 2004 and the same was returned on 11. From Ex.D1-Form 95, it is also seen that Ledger of S.N. Towers lodge seized by the Police was produced before the Judicial Magistrate No.III, Tiruchirappalli on 01. 2004 and the same was returned on 11. 2004 and represented on the same day. From the entries in Ex.D1-Form 95, it is seen that Court has returned the ledger directing that Register should be filed along with charge sheet. The return dated 11. 2004 reads as under:- "Returned: The Register has to be marked as Exhibits. Hence, the register should be filed along with charge sheet." 18. The ledger which was returned to be produced along with charge sheet was not at all produced before the Court. Ledger making entries in booking the room is the record maintained in the normal course of business. Ledger containing entry for booking room is a vital piece of evidence. In our considered view, non-production of ledger snaps vital link connecting the accused with the offence. As pointed out earlier, in the ledger while booking the room, accused is alleged to have made entry as "Jeniffer", 26, Vellala street, Madurai and signed as "Jeniffer". After arrest of the accused, Investigating Officer ought to have collected sample writings of the accused as that of the disputed writings and must have been sent to the Handwriting Expert for obtaining opinion on the disputed writings. Opinion of the Handwriting Expert would have been the best attainable evidence which prosecution has not chosen to produce. In our considered view, non-production of best attainable evidence adversely affects the prosecution case. 19. Non-production of vital piece of evidence - Ledger has been side tracked by the trial court on the flimsy ground that maintenance of Ledger is not controverted by the accused while cross examining PW1. Ledger being a vital piece of evidence, notwithstanding the stand of accused, it was the incumbent upon the prosecution to prove that accused stayed in the Lodge on 112. 2003. Mere circumstance that accused has not cross examined PW1 cannot be taken as proof of missing link. 20. Insofar as identification of the accused, as we have pointed out earlier, PW1-Receptionist and PW3-Room boy have identified the accused as the person who occupied Room No.106. Accused being resident of Dindigul, evidently accused was a stranger to PWs.1 and 3. Accused was arrested 3½ years after the occurrence. 20. Insofar as identification of the accused, as we have pointed out earlier, PW1-Receptionist and PW3-Room boy have identified the accused as the person who occupied Room No.106. Accused being resident of Dindigul, evidently accused was a stranger to PWs.1 and 3. Accused was arrested 3½ years after the occurrence. PW1 happened to see the appellant-accused and deceased at the time of booking the room and when they went out and came back to the lodge. PW3-Room boy had occasion to see accused and deceased when he went to the room to enquire about getting tiff in for them. Even though, PWs.1 and 3 were Receptionist and Room boy in S.N. Towers lodge, PWs.1 and 3 had occasion to see the accused and deceased for a brief while. PWs.1 and 3 have identified the accused only in Court nearly five years after the occurrence. Absolutely, no evidence available to show that PWs.1 and 3 have identified the accused in the Police Station. 21. Accused being a stranger to PWs.1 and 3, it is incumbent upon the Investigating Officer to get suspect identified from witnesses in Test Identification Parade. Holding of Test Identification Parade not only ensures the eye-witnesses memory regarding identity of the appellant-accused, but also ensures that the investigation is proceeding on the right direction and that the person arrested as the real culprit. Test Identification Parade if held promptly and after taking necessary precautions to ensure its credibility would lend the required assistance, which the Court ordinarily seeks to act on it. In the absence of such identification, having regard to the delay between the occurrence and identification of the accused, in our considered view, it would be unsafe to place reliance upon identification made for the first time in the Court after number of years. 22. Prosecution mainly relies upon last seen alive theory that the deceased Fathima was last seen alive in the company of the accused Rajagopal and therefore, it is incumbent upon the accused to explain the death of the deceased. With regard to last seen alive theory, there are inconsistent versions. In Column 4 of Inquest Report, it is stated as :- Per contra, in his evidence, PW1 has stated that on 112. 2003 Room was found to be locked. In his evidence PW3-Room boy has stated that on 112. With regard to last seen alive theory, there are inconsistent versions. In Column 4 of Inquest Report, it is stated as :- Per contra, in his evidence, PW1 has stated that on 112. 2003 Room was found to be locked. In his evidence PW3-Room boy has stated that on 112. 2003 at 8.30 A.M., he enquired the accused and deceased as to whether they wanted anything and they have stated that they are going to temple and therefore, they do not want anything. Since the occupants had not opened the room, on the morning of 112. 2003, room was opened and deceased was found dead. We find that there are prevaricating versions as to the circumstance of last seen alive is irreconcilable. 23. In the absence of any definite proof that accused stayed in Room NO.106 along with deceased, prosecution cannot fall back upon the circumstance of last seen theory. In the absence of definite evidence against the accused that he stayed in Room No.106 along with the deceased, accused cannot be insisted upon to offer his explanation as to the death of the deceased. 24. PW21-Inspector of Police arrested the accused in the presence of PW14-VAO of Thimmarayasamuthiram and his Assistant on 04. 2007. In Ex.P22-Admissible portion of confession statement, accused has stated that he has hidden MO20-Key chaIN of Room No.106 and fake identification card SBCID Sub-Inspector of Police in Mohammada Beevis[PW17] house. Ex.P22-Admissible portion of confession statement reads as under:- Whereas in Ex.P12-Seizure Mahazar, MO20-Key Chain and MO21-fake identification card of Tamil Nadu Police is said to have been recovered from the house of "Rajagopal, K.K.Nagar, Dindigul. Ofcourse, Mohammada Beevi is none other than the estranged wife of accused who was examined as PW17. PW17-Mohammada Beevi has stated that she is residing at Parappatti, Dindigul. PW14¬VAO and PW21-IO have stated that MOs.20 and 21 were recovered only from the house of the accused. Here again, there is material contradiction between Ex.P22-Admissible portion of confession statement of accused and the place of recovery as stated in Ex.P12-Seizure Mahazar which throws serious doubt about prosecution version. 25. Of course, PW14-VAO and PW21-IO have spoken about the arrest and recovery, but considering the evidence of PW1, arrest and recovery on 04. 2007 in South Vulveethi [ cs;tPjp ] of Thiruvanaikoil is highly doubtful. In his chief examination, PW1 has stated that on 4. 25. Of course, PW14-VAO and PW21-IO have spoken about the arrest and recovery, but considering the evidence of PW1, arrest and recovery on 04. 2007 in South Vulveethi [ cs;tPjp ] of Thiruvanaikoil is highly doubtful. In his chief examination, PW1 has stated that on 4. 2007 accused had again come to the lodge to book a room and at that time, he has given intimation to the Police. Evidence of PW1 smashes the prosecution version as to arrest of the accused on 4. 2007 in Vulveethi of Thiruvanaikoil. 26. From the house of the accused, Key [MO20] of Room No.106 is alleged to have been recovered under Ex.P12-Mahazar. It is quite unbelievable that key of Room No.106 which is an incriminating piece of evidence against the accused was kept safely in the house of the accused for a period of about 3½ years. In our considered view, arrest of the accused on 4. 2007 and recovery of MOs.20 and 21 does not inspire confidence of the Court. 27. Both in Ex.P1-Complaint and in Ex.P14-FIR, deceased woman was said to have been wearing saree and blouse. In Ex.P2-Observation Mahazar a ceiling fan in dark brown colour is referred to. Drawing our attention to the evidence of PW13-Dr.Karthikeyan, post-mortem Doctor, accused submitted that there would have been bluish colour in the nail of hands and legs of deceased due to Asphyxia. Placing reliance upon 2004 -SAR (Crl) 597 [Narendra Singh and another v. State of MP], accused further contended that death might have been due to suicidal hanging and when there are two possibilities as to the death, one in favour of the accused has to be adopted. The accused therefore contended that alternative possibility of death due to suicidal hanging has to be taken into consideration and benefit of doubt to be given to the accused. 28. Since we have held that prosecution has failed to establish that accused was the person who stayed in Room No.106, S.N. Towers lodge on 112. 2003 along with deceased which snaps the vital link, we do not propose to go into the other contentions raised by the appellant-accused. For the same reason, we do not propose to deal with the number of citations relied upon by the appellant-accused. 29. Deceased is stated to be one Fathima who was allegedly taken by the accused for having sex. For the same reason, we do not propose to deal with the number of citations relied upon by the appellant-accused. 29. Deceased is stated to be one Fathima who was allegedly taken by the accused for having sex. It is pertinent to note that absolutely there was no investigation as to who the deceased was and the motive that impelled the accused to commit the offence. When heinous crime are committed in great secrecy, investigating agency has to take greater care and the circumspection in making honest and sincere investigation. The prosecution in fairness should have adduced evidence as to the circumstance which impelled the accused to commit the offence. 30. Placing reliance upon the informations obtained from Right to Information Act, appellant-accused contended that in respect of burial of body of deceased PW12-Head Constable and PW12-IO have given different version and thus prosecution has not established the burial of the body. In his evidence PW12- Kesavan, Head Constable has stated that after postmortem the body was buried in Thillai Nagar, Anna Nagar burial ground. The relevant portion of evidence of PW12-HC reads as under:- In his evidence, PW20-IO has stated that after postmortem the body was buried in Oyamari burial ground. The relevant portion of evidence of PW20-IO reads as under:- 31. By perusal of the letter Na.Ka.No.C4/3225/2009 dated 20.4.2009 issued by Corporation of Tiruchirappalli, Srirangam Division to the appellant-accused under Right to Information Act before and after 30 days on 112. 2003, no body in respect of Cr.No.835/2003 of Srirangam Police Station was either buried or burnt in Oyamari burial ground. Like wise, by perusal of Na.Ka.No.2672/09/C4 dated 15. 2009 issued by Corporation of Tiruchirappalli, Abishekapuram Division addressed to the appellant-accused under Right to Information Act, no body in respect of Cr.No.835/2003 of Srirangam Police Station was buried in Thillai Nagar, Anna Nagar burial ground. The variation in the version of PW12-Head Constable and PW20-IO in respect of burial of the body and the letters produced by the appellant-accused during the course of arguments raises serious doubts as to the prosecution version in respect of burial of the body of deceased. 32. It is a sound proposition that every criminal act is done with a motive. Of course motive to commit criminal act is generally difficult area for prosecution. Since one cannot normally see into the mind of another. 32. It is a sound proposition that every criminal act is done with a motive. Of course motive to commit criminal act is generally difficult area for prosecution. Since one cannot normally see into the mind of another. Prosecution has not adduced any evidence as to what was the impelling factor for the accused to commit the murder of deceased in secrecy. Absolutely, evidence is lacking so far as motive is concerned. In case based upon circumstantial evidence, motive plays a vital role. Absence of proof of motive should also regarded as circumstance in favour of the accused. 33. Observing that the investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and that police investigation is the foundation stone on which the whole edifice of criminal law rests and that an error in its chain of investigation may result in miscarriage of justice, in 1991 Crl. L.J. 1438 [State of Bihar and another v. P.P.Sharma and another], the Supreme Court held as follows:- "47. The investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. The police investigation is, therefore, the foundation stone on which the whole edifice of criminal trial rests -an error in its chain of investigation may result in miscarriage of justice and the prosecution entails with acquittal. The duty of the investigating officer, therefore, is to ascertain facts, to extract truth from half-truth or grabbed version, connecting the chain of events. Investigation is a tardy and tedious process. Enough power, therefore, has been given to the police officer in the area of investigatory process, granting him or her great latitude to exercise his discretionary power to make a successful investigation. It is by his action that law becomes an actual positive force. Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. His/her primary focus is on the solution of the crime by intensive investigation. It is his duty to ferret out the truth. Laborious hard-work and attention to the details, ability to sort out through mountainous information, recognised behavioural patterns and above all, to co-ordinate the efforts of different people associated with various elements of the crime and the case, are essential. Diverse methods are, therefore, involved in making a successful completion of the investigation." 34. Criminal law has a purpose to serve. The object is to suppress the criminal enterprise and punish the guilty. It is by action of the Investigating Officer, the criminal law becomes an actual positive force. In this case, we find that there is lack of thoroughness in investigation in not producing the ledger and not producing the best attainable evidence against the accused. Prosecution has not adduced satisfactory evidence proving the circumstances. 35. Judicial process can operate only on the firm foundation of actual and credible evidence on record. Mere suspicion cannot relieve the prosecution on its primary duty of proving its case against the accused person. By cogent and convincing evidence, prosecution has not proved that the accused was the person stayed with the deceased Fathima on 112. 2003. While so, it would be unsafe to base conviction on the evidence of PWs.1 and 3 and the alleged arrest and recovery. Reasonable doubts arise as to the prosecution case and the benefit of which is to be given to the accused and therefore, conviction of the appellant-accused is liable to be set aside. 36. In the result, the conviction of the appellant-accused in S.C.No.165/2008 dated 112. 2008 on the file of I Addl. Session Judge [PCR], Tiruchirappalli is set aside and this appeal is allowed. Appellant-accused is acquitted of the charge U/s.302 IPC. Fine amount if any paid by the appellant-accused is ordered to be refunded to him. 36. In the result, the conviction of the appellant-accused in S.C.No.165/2008 dated 112. 2008 on the file of I Addl. Session Judge [PCR], Tiruchirappalli is set aside and this appeal is allowed. Appellant-accused is acquitted of the charge U/s.302 IPC. Fine amount if any paid by the appellant-accused is ordered to be refunded to him. Appellant-accused is directed to be released forthwith, unless his custody or detention is required in any other case. Consequently, M.P.No.1/2009 is closed.