Prayer
Criminal Appeal filed under Section 374 (2) of Cr.P.C., 1973, to call for the entire records in connection with the S.C.No.187/2016 on the file of the Learned Additional District and Sessions Judge, Hosur, Krishnagiri District and set aside the Judgment dated 12.11.2018.
Appeal against the conviction
This Criminal Appeal has been filed by the accused 1 to 3, challenging the conviction and sentences imposed upon them vide judgment dated 12.11.2018 in S.C.No.187 of 2016 on the file of the learned Additional District and Sessions Judge, Hosur, Krishnagiri District.
A1 302 IPC to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months.
A2 302 IPC to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months.
A3 302 IPC to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months.
Consideration
List of witnesses and their roles in the case
8. P.W.1 is the Village Administrative Officer before whom A3 gave a confession. P.W.2 to P.W.4 are close relatives of the deceased, who are said to have seen the deceased along with the appellants on 12.01.2016. P.W.5 is the brother of the deceased. P.W.6 is the Observation Mahazar witness [Ex.P7]. P.W.7 is the post-mortem doctor. P.W.8 is the post-mortem constable, who handed over the body. P.W.9 is the Sub Inspector of Police, who registered the First Information Report. P.W.10 is the first Investigating Officer, and P.W.11 is the Investigating Officer who filed the Final Report.
Deceased died of asphyxia due to drowning and the external injuries could have caused when the body was taken out of well
9. P.W.7, the doctor conducted a post-mortem on 15.01.2016 at about 3.00 p.m. She also noted an abrasion near the left eyebrows, measuring 3 x 2 cms. In her final opinion [Ex.P9], she had opined that the deceased died of asphyxia due to drowning. The Forensic Science Laboratory had also noted ethyl alcohol in the intestine, liver, kidney, and blood samples. The Doctor had further stated during cross examination that the injuries sustained by the deceased could have been caused when the body was taken out of the well. No other external injuries were found on the deceased. It is also the definite case of the prosecution that A1 smashed the backside of the head of the deceased with a stone; however, no corresponding injury was noted in the post-mortem report.
10. Be that as it may. Even as regards the involvement of the accused, we find that the evidence let in by the prosecution does not form a complete chain of circumstances.
Witnesses hardly establish the motive
11. As regards motive, it is seen that P.W.2 and P.W.5 were examined by the prosecution. P.W.2 would vaguely state that he came to know that there was a dispute between the families of the accused and the deceased. P.W.5 is the brother of the deceased, who would also vaguely state that there was a dispute between the accused family and the family of the deceased. However, we find that the wife of the deceased or other material witnesses have not been examined by the prosecution. The evidence of the above two witnesses hardly establishes the motive. Admittedly, the accused and the deceased were friends, and there is no evidence to suggest that the deceased was forcibly taken by the accused. There is also no complaint by the family till 15.01.2016 about the missing person, when according to the prosecution, the deceased did not return home on 12.01.2016. The conduct of the witnesses, namely P.W.2 and P.W.5, who had spoken about the fact that the deceased went with the accused, is opposed to human conduct.
Brothers-in-law of deceased though seen the deceased with the appellants did not make any effort to complaint
12. P.W.3 and P.W.4, the brothers-in-law of the deceased who had allegedly seen the deceased with the appellants, also did not make any effort to complain to the police till 15.01.2016. It is the prosecution case that the police came to know of the occurrence only on the complaint of P.W.1, who recorded the confession of A3 to. This would show that no complaint was made by the relatives of the deceased till then. The evidence of P.W.2 to P.W.5 who had deposed about the circumstances of the last seen appears to be an afterthought, and no credibility can be given to their evidence.
P.W-1 is stranger to A3 and no necessity for A3 to trust and confess to P.W-1
13. A3 is said to have given extra judicial confession to P.W.1 on 15.01.2016. P.W.1 is a stranger to A3. There was no necessity for A3 to trust and then confess to P.W.1. Be that as it may. P.W.2 would state that the villagers questioned all the accused, and they had handed over the accused to the police. The relevant portion reads as follows:
” vjphpfis Ch;fhuh;fs; nghyprhhplk; xg;gilj;jjh;fs;;.” [tamil vernacular language]
This evidence also raises considerable doubt with regard to the recording of confession of A3 by P.W.1. The voluntariness and truthfulness of the extra judicial confession are, therefore, highly doubtful.
Prosecution has not proved that the accused attacked the deceased with stones
14. As stated earlier, it is the case of the prosecution that the accused attacked the deceased with stones on the head and other parts of the body. However, the medical evidence belies the prosecution case. Therefore, we are of the view that none of the circumstances relied upon by the prosecution case against the accused have been established. Hence, we are of the view that the Judgment of conviction based on such evidence cannot be sustained, and therefore, the conviction and sentences imposed on the accused are liable to be set aside.
Hon’ble Madras High Court acquitted the accused
15. Accordingly, the Criminal Appeal is allowed and the appellants are acquitted of the charges. The conviction and sentence imposed upon them in S.C.No.187 of 2016 dated 12.11.2018, on the file of the learned Additional District and Sessions Judge, Hosur, Krishnagiri District, are set aside, and the appellants are directed to be set at liberty forthwith, unless their presence is required in connection with any other case. The fine amount, if any, paid by the appellants shall be refunded. Bail bond, if any, executed shall stand discharged.
Party
1. Anjappa, 2. Sasikumar, 3. Harish @ Veerappa …Appellants/Accused Nos.1 to 3 vs. State by the Inspector of Police, Denkanikottai Police Station, Krishnagiri District. Crime No.31 of 2016 …Respondent/Complainant – Crl.A.No.829 of 2018 – In The High Court Of Judicature At Madras – Dated: 07.03.2024; Coram : The Hon’ble Mr. Justice M.S.Ramesh And The Hon’ble Mr. Justice Sunder Mohan
