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2019 DIGILAW 2109 (MAD)

Arockia Vanakkarasa v. State

2019-08-16

G.R.SWAMINATHAN

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JUDGMENT : G.R. SWAMINATHAN, J. 1. The appellant was convicted for the offences under Sections 304 (ii) and 201 IPC and sentenced to undergo rigorous imprisonment for ten years and three years respectively vide judgment dated 19.04.2012 in S.C. No. 115 of 2011 on the file of the Sessions Judge, Tiruchirappalli Division, Tiruchirappalli. 2. The prosecution case is follows: The appellant Arockia Vanakkarasa got married to one Priyanka Mary/PW-2 in the year 2009. Priyanka Mary developed some illness. Therefore, the appellant and Priyanka Mary came to the house of PW-1, the mother of Priyanka Mary/PW-2. While so on 10.12.2010 at about 08.00 A.M, the appellant Arockiya Vanakkarasa went for, cutting grass along with his brother in law Thiraviyanathan. Thiraviyanathan was aged around nine years. The appellant alone returned, home and Thiraviyanathan was missing. Thiraviyanathan was found dead two days later. In this regard, Arockiammal lodged Ex. P1 complaint on 12.12.2010 before Thiruverumbur Police Station leading to registration of Ex. P12 FIR in Crime No. 605 of 2010 under Section 174 of Cr.P.C. It is claimed by the prosecution that the offence was altered to one under Section 302 IPC on 15.12.2010 at around 12.00 Noon. However, no such alteration report is available in the court records. What is available in the court records is only Ex. P16 a further alteration report whereby along with Section 302 IPC, Section 201 IPC was also incorporated. Investigation was concluded and final report came to be filed before the Judicial Magistrate No. VI, Tiruchirappalli against the appellant herein for the offences under Sections 302 and 302 r/w. 201 IPC. The case was committed to the Sessions Court in PRC No. 13 of 2011. The case was taken up for trial in S.C. No. 115 of 2011. Charges were framed against the appellant under both the provisions. The appellant pleaded not guilty to the charges and claimed to be tried. The prosecution examined as many as 16 witnesses and marked Exs. P1 to P.20. M.O.I to M.O.3 were also marked. On the side of the defence, the father of the appellant was examined as DW-1. The learned trial judge after a detailed consideration of the evidence on record, by the impugned judgment acquitted the appellant in respect of the offence under Section 302 IPC, but convicted him under Section 304(ii) and 201 IPC and sentenced him as mentioned above. On the side of the defence, the father of the appellant was examined as DW-1. The learned trial judge after a detailed consideration of the evidence on record, by the impugned judgment acquitted the appellant in respect of the offence under Section 302 IPC, but convicted him under Section 304(ii) and 201 IPC and sentenced him as mentioned above. Questioning the same, this appeal came to be filed. 3. The learned counsel appearing for the appellant reiterated the contentions set out in the memorandum of grounds of appeal and wanted this Court to acquit the appellant. Per contra, the learned Government Advocate (Crl. Side) submits that the impugned judgment does not warrant any interference and wanted this Court to dismiss this appeal. 4. I carefully considered the rival contentions and perused the evidence on record. It is not in dispute that the entire case of the prosecution rests only on circumstantial evidence. The prosecution would primarily harp on the extra judicial confession said to have been given by the accused/appellant to PW-6 Sathiamoorthy. This Court carefully went through the evidence of PW-6. The said Sathiamoorthy is a local dignitary. He deposed that on 15.12.2010 when he was chatting in his house, the accused came to him and confessed to the crime. PW-6 would state that the accused told him that when he was having sexual intercourse with his wife, his brother in law Thiraviyanathan happened to witness the same and he not only teased the appellant but also threatened that he will disclose the same to others. The appellant feeling overcome by a sense of shame decided to do away the deceased. He took his brother in law along with him for cutting grass on 10.12.2010 in the morning. The appellant pushed Thiraviyanathan to the ground and stuffed his mouth with grass and slit his throat with M.O.I Bill Hook and thereafter threw the body into the nearby well. PW-6 would further claim that he retained the appellant in his house till the morning of 16.12.2010 and thereafter took him to the house of PW-1 and then took him to Thiruverumbur Police Station and lodged Ex. P.4 which contains the extra judicial confession. 5. The testimony of PW-6 does not inspire my confidence. The appellant/accused hails from Paramakudi Taluk in Ramanathapuram District. His wife hails from Nathambadipatti in Trichy District. P.4 which contains the extra judicial confession. 5. The testimony of PW-6 does not inspire my confidence. The appellant/accused hails from Paramakudi Taluk in Ramanathapuram District. His wife hails from Nathambadipatti in Trichy District. The appellant had come with his wife to Nathambadipatti Village only in the month of October, 2010. He had no roots there. Even according to PW-6, the appellant was not intimate with him. PW-6 is not the local Village Administrative Officer or a Police Official. There is simply no reason for the accused to repose faith in PW-6 to make the confession in question. What appears to be artificial is the claim of PW-6 that he retained the appellant in his house from 10.00 P.M to 5.00 A.M. Nathambadipatti Village is after all a small place. If the appellant confessed to the crime to PW-6, he would have definitely called PW-1 and the wife of the appellant and informed them. He had not done so. The fact that PW-6 did not take the accused immediately to the house of PW-1, arouses the suspicion of this Court. The testimony of PW-6 is not at all credible. 6. The appellant denied the case projected by the prosecution in toto. He does not admit the prosecution case that on 10.12.2010, he taken his brother in law along with him. The deceased Thiraviyanathan was a nine year old boy and studying in school. PW-1 would admit that she came to know that her son had not attended the school on the occurrence date. If that be so, PW-1 would have lodged a complaint immediately. In this case, PW-1 lodged Ex. P.1 complaint only on 12.12.2010 at about 06.00 P.M. The said complaint reached the court only on 15.12.2010 at about 04.00 P.M. It is relevant to note here that the FIR said to have been registered on 12.12.2010 at about 18.00 hrs also reached the court on 15.12.2010. Of course, as rightly pointed out by the learned Government Counsel at that point of time, there was no need to forward the complaint or even the FIR to the Magistrate immediately. The appellant was arrested on 16.12.2010 at about 06.30 A.M and he is said to have made confession about the crime. The admissible portion of the confession was marked as Ex. P17. The appellant was arrested on 16.12.2010 at about 06.30 A.M and he is said to have made confession about the crime. The admissible portion of the confession was marked as Ex. P17. That apart, though the blood stained clothes of the appellant was recovered pursuant to the said confession, interestingly, they were not sent for serological test. It is also interesting to note that M.O.2 and M.O.3 were recovered from the house of PW-1. PW-1 in her examination has not said anything about the recovery of M.O.2 and 3 from her house. If as claimed by the prosecution on account of the crime, the clothes of the accused got blood stained, that would have been noticed by PW-1 or the wife of the appellant PW-2, when the appellant returned from his work in the field. Neither P.W 1 nor PW-2 have claimed that the conduct of the appellant was suspicious when he returned home without his brother in law Thiraviyanathan. 7. There is much force in the contention of the learned counsel for the appellant that the theory of the appellant and Thiraviyanathan lastly going together has been brought out for the purpose of strengthening the prosecution case. According to PW-6, only on the night of 15.12.2010 the involvement of the appellant came to light and that he reported to the mother of PW-1 as well as the police on the next day morning i.e. 16.12.2010. But then, PW-4 who is a close relative of the deceased admitted that the police took the appellant to the police station on the date when the body of Thiraviyanathan was brought after the postmortem was conducted. It means the appellant was taken to the police station on 13.12.2010 itself. 8. The appellant's counsel states that the motive projected by the prosecution is too flimsy. In fact, this aspect of the matter has been noted by the trial court also. According to the prosecution, the brother in law of the accused/deceased witnessed the accused was having sexual relationship with his wife/the sister of the diseased. Thiraviyanathan is said to have threatened the appellant that he would spread the news to others. Even then there is no need to feel ashamed. The appellant after all was having sexual intercourse with his own wife. Therefore, the case projected by the prosecution appears to be too flimsy. Thiraviyanathan is said to have threatened the appellant that he would spread the news to others. Even then there is no need to feel ashamed. The appellant after all was having sexual intercourse with his own wife. Therefore, the case projected by the prosecution appears to be too flimsy. As already pointed out, there is no ocular evidence to sustain the charge against the appellant. The entire case rests only on circumstantial evidence. In this case, the prosecution wants to rely on the last seen theory and the extra judicial" confession. I have already held that the said extra judicial confession given by the appellant to PW-6 did not inspire my confidence. Likewise, the last seen theory also cannot form the basis for convicting the appellant. The Hon'ble Supreme Court in more than one case held that on the strength of the "last seen together" evidence, a person cannot be convicted. It requires corroboration. In this case, the appellant had denied that the deceased had accompanied him. Since the entire" case of the prosecution appears to have been built and developed after the postmortem report came, I am inclined to hold that the prosecution has not at all established its case against the appellant, let alone prove it beyond reasonable doubt. Hence, the impugned judgment is set aside. The appellant is acquitted. The bail bond executed by the appellant shall stand cancelled. Fine amount if any remitted by the appellant shall be refunded to him. Accordingly, this criminal appeal stands allowed.