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2010 DIGILAW 4390 (MAD)

Thangaraji v. State, rep. by Inspector of Police

2010-09-30

M.CHOCKALINGAM, M.SATHYANARAYANAN

body2010
Judgment : M. CHOCKALINGAM, J. Challenge, is made to the judgment of the Principal Sessions Judge Dharmapuri, made in S.C. No. 109 of 2009 dated 9.4.2010 whereby, the appellant/accused stood charged and tried under Section 302 I.P.C.. and on trial, he was found guilty of the above said charge and he was sentenced to undergo imprisonment for life and he was imposed with a fine of Rs. 2,000/- in default, to undergo rigorous imprisonment for three years. 2 The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is the father of P.W.2. The appellant/accused is the husband of P.W.2. The marriage between P.W.2 and appellant/accused was solemnized five years before, and a male child was born to them. During the matrimonial life often quarrel arose between them and P.W.1 used to interfere and pacify them. (b) On the date of occurrence, viz., 13.1.2005 at about 11.00 a.m., P.W.2 was in the house. Her husband/appellant/accused was also in the house. P.W.2 went outside the house to wash the clothes leaving her child in the cradle. Suddenly, she heard a distressing, cry of the child. Immediately, she went inside the house and found the appellant/accused strangulating the child with M.O.2-rope. On seeing the said incident, she cried “Don‘t Kill, Don‘t Kill the child ” . Immediately, the appellant/accused ran away from the place of occurrence. On receipt of information, P.W.1, father of P.W.2, who was residing at Salem rushed to the house of P.W.2. P.W.2 came to know about the incident. Then, he proceeded to the respondent Police Station and gave Exhibit P-1-complaint. On the strength of the same, a case came to be registered by P.W.11 in Cr. No. 14 of 2005 under Section 302 IPC. The copy of the First Information Report Exhibit P-9, was despatched to the Court. (c) P.W.12, this Circle Inspector, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the place of occurrence, made an inspection in the presence of the witnesses and prepared Exhibit P-2, the observation mahazar and Exhibit P-10, the rough sketch. He has taken photos and the photos and negatives were marked as M.Os.3 and 4. The inquest on the dead body of the deceased was conducted by the Investigating Officer in the presence of witnesses and he prepared Exhibit P-11, the inquest report. He has taken photos and the photos and negatives were marked as M.Os.3 and 4. The inquest on the dead body of the deceased was conducted by the Investigating Officer in the presence of witnesses and he prepared Exhibit P-11, the inquest report. Following the same, the dead body of the deceased was sent for the purpose of autopsy along with a requisition letter Exhibit P-6. Then, he seized the M.O.1 saree in the presence of witnesses. (d) P.W.5, the Doctor attached to the Harur Government Hospital has conducted autopsy on the dead body of the deceased and has issued Exhibit P-7, the post-mortem certificate, wherein, the Doctor has opined that the child died due to Asphyzia due to strangulation. (e) Pending investigation, the appellant/accused was arrested on 19.1.2005 at 7.30 a.m. and he volunteered to give a confessional statement, which was recorded in the presence of the witnesses. The admissible portion of the confession is marked as Exhibit P-4. Pursuant to the confessional statement, the appellant/accused produced the M.O.2-rope from the hidden place viz., bush, which was recovered in the presence of witnesses under a cover of mahazar. Ths viscera and hyoid bone were sent for Chemical Analysis and pursuant to which, Exhibit P-15, the Bone Case report and Exhibit P-16, the Viscera report, were received. The Investigating Officer examined all the witnesses and recorded their statements. On completion of the investigation, he filed the final report in Cr. No. 14 of 2005 for the offence under Section 302 I.P.C. (f) The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has marched 13 witnesses as P.Ws.1 to 13 and also relied on 16 exhibits as Exhibits P-1 to P-16 and relied on four material objects as M.Os.1 to 4. On completion of the evidence on the side of the prosecution, the appellant/accused was questioned under Section 313 Cr.P.C procedurally as to the incriminating circumstances found in the evidence of prosecution witnesses, which the accused flatly denied as false. On the side of the defence, no one was examined and no documents were marked. On completion of the evidence on the side of the prosecution, the appellant/accused was questioned under Section 313 Cr.P.C procedurally as to the incriminating circumstances found in the evidence of prosecution witnesses, which the accused flatly denied as false. On the side of the defence, no one was examined and no documents were marked. On completion of the evidence, the lower Court heard the arguments advanced by both sides and also scrutinised the materials available and took a view that the prosecution has proved the case beyond reasonable doubt and has found the accused/appellant guilty and has awarded punishment as referred to above. Hence, this appeal at the instance of the appellant. 3 Advancing the arguments on behalf of the appellant, the learned Counsel Mr. Samuel Raja Pandian would vigorously and vehemently in his sincere attempt of assailing the judgment of trial Court would submit that in the instant case, the prosecution has miserably failed to prove the case but the trial Court has taken an erroneous view finding the accused guilty. Learned counsel would further submit that the occurrence has taken place according to prosecution on 13.1.2005 not about 11.00 a.m and during that relevant time, the husband/ appellant/accused and wife/P.W.2 along with the child were present in the house. P.W.2 went outside the house for washing the clothes. On hearing the distressing cry of the child, she rushed inside the house and she witnessed the appellant/accused strangulating the neck of the child and caused the death due to Asphygia. The only witness examined by prosecution was P.W.2 as an eye witness. P.W.2 turned hostile and her evidence is not at all useful to the case of prosecution. P.W.2 has deposed that her husband/appellant/accused was also available in the house at the time of occurrence. She has categorically deposed that it is not known as to whether the accused strangulated the neck of the child or caused the death of the child. 4 The learned counsel for the appellant would further submit that the prosecution then relied upon the recovery of M.O.2-rope, pursuant to the alleged confessional statement given by the accused to P.W.12-Investigating Officer in the presence of the witnesses Theerthalingam and Murugesan. 4 The learned counsel for the appellant would further submit that the prosecution then relied upon the recovery of M.O.2-rope, pursuant to the alleged confessional statement given by the accused to P.W.12-Investigating Officer in the presence of the witnesses Theerthalingam and Murugesan. The learned counsel for the appellant commenting on the evidence would first of all submit that this part of evidence should have been brushed aside for the simple reason that the rope alleged to have been recovered from the bush was only a coconut rope and there was no necessity for a person to carry the same from the house and throw it outside the house or hide it in a bush. Apart from this, the M.O.2-rope that was actually recovered from him was having a circumference of 4 c.m., but, the Doctor, who conducted the post-mortem, has indicated that the external injury was only 1 c.m. and hence, if a strangulation as put forth by the prosecution by M.O.2-rope had been done by the appellant/accused the ligature mark found on the neck should have a circumference of 4 c.m., and the actual pressure exerted should have been much so as to cause Asphyxia. The case of the prosecution was that M.O.2-rope was actually recovered from the appellant/accused and if the same was used for strangulating the child the ligature mark found on the neck should have a circumference of 4 c.m., but, the ligature mark found on the neck of the child had a circumference of only 1 c.m. which would clearly indicate that the M.O.2-rope could not have been used at all. 5 Apart from that, the learned counsel would submit that M.O.2-rope alleged to have been recovered from the appellant/accused was not sent for Chemical Analysis. If the M.O.2-rope had been sent for Chemical Analysis bloodstains and part of tissues would have been traced. For this, no explanation is forth coming from the prosecution. 5 Apart from that, the learned counsel would submit that M.O.2-rope alleged to have been recovered from the appellant/accused was not sent for Chemical Analysis. If the M.O.2-rope had been sent for Chemical Analysis bloodstains and part of tissues would have been traced. For this, no explanation is forth coming from the prosecution. Under such circumstances, when the appellant/accused was called upon to explain the incriminating circumstance found against him, the appellant/accused has categorically stated that at the time when the child was in the cradle both himself and his wife were outside the house and on hearing the distressing cry they both rushed inside the house and saw that the child, which was in the cradle fell down and due to which, the child died and it way only accidental, in which, he has no role to play. Under such circumstances, though the prosecution is able to show that the appellant/accused was also very much available in the house along with P.W.2 and the child, there is no circumstance or any evidence either direct or indirect connecting the appellant/accused with the crime and thus, it would be unsafe to sustain the conviction. Since, the prosecution miserably failed to prove its case, the appellant is entitled for acquittal in the hands of this Court, but, the learned trial Judge has taken an erroneous view and has passed the judgment of conviction and sentence which has to be set aside. 6 Heard the learned Additional Public Prosecutor on the above contentions. This Court has paid its anxious consideration on the submissions mode. 7 It is not in controversy that following the incident that had taken place on 13.1.2005 at about 11.00 a.m., the child died and the inquest was made on the dead body of the child by the Investigating Officer-P.W.12. Following the same, P.W.5, the Doctor attached to the Harur Government Hospital has conducted autopsy on the dead body of the deceased and has issued Exhibit P-7, the post-mortem certificate, wherein, the Doctor has opined that, the child died due to Asphyzia due to strangulation. Following the same, P.W.5, the Doctor attached to the Harur Government Hospital has conducted autopsy on the dead body of the deceased and has issued Exhibit P-7, the post-mortem certificate, wherein, the Doctor has opined that, the child died due to Asphyzia due to strangulation. In the instant case, the prosecution came with a story that on 13.1.2005 at about 11.00 a.m., leaving the child in the cradle, P.W.2/wife of appellant was outside the house washing the clothes and suddenly, she heard a distressing cry and immediately, she rushed inside the house and she witnessed that her husband/appellant/accused strangulating the neck of the child with M.O.2-rope. 8 Now, the only witness marched by the prosecution to speak about the above occurrence was P.W.2, who has turned hostile. Under such circumstances, the prosecution rested its case only in the circumstances, viz., the medical opinion canvassed and also recovery of M.O.2-rope. In the considered opinion of the Court both the pieces of evidence projected by the prosecution before the trial Court are neither useful to the case nor pointing to the guilt of the accused. 9 Insofar as recovery of M.O.2-rope is concerned, according to the Investigating Officer-P.W. 12 the appellant/accused gave a confessional statement, and pursuant to the confessional statement, he produced the M.O.2-rope from the hidden place viz., bush, which was recovered in the presence of witnesses under a cover of mahazar. The M.O.2-rope, which was alleged to have been recovered was only a coconut rope and in fact, there is no necessity for a person to carry the same and throw it outside the house or hide it in the bush. Apart from that, if the M.O.2-rope was used for strangulating the child the ligature mark found on the neck should have a circumference of 4 c.m., but, the ligature mark found on the neck of the child had a circumference of only 1 cm. which would clearly indicate that the M.O.2 rope could not have been used at all. Apart from the same, after the M.O.2-rope was recovered, the Investigating Officer did not send the same for chemical analysis, for which, no explanation was forth coming from the prosecution. which would clearly indicate that the M.O.2 rope could not have been used at all. Apart from the same, after the M.O.2-rope was recovered, the Investigating Officer did not send the same for chemical analysis, for which, no explanation was forth coming from the prosecution. Added further circumstance is that the complaint was given after 23 hours from the time of occurrence and the explanation tendered by the prosecution was that P.W.2 was awaiting for her father/P.W.1 to come and then only a complaint was given. Though, according to the prosecution P.W.2 was an eye witness to the occurrence, she did not gave the complaint. But, the complaint was given by P.W.1, who came to the place of occurrence later. Under such circumstances, all would clearly indicate that the prosecution has not brought home the guilt of the accused by direct or circumstantial evidence and hence, it would be unsafe to sustain the conviction and sentence and therefore, he is entitled for acquittal. 10 Under these circumstances, the judgment of the lower Court is set aside. Appellant/Accused is acquitted of the charges levelled against him and the fine amount paid in that regard will be refunded to him. He is directed to be released forthwith unless his presence is required in connection with any other case. 11 In the result, the criminal appeal is allowed.