Masila @ Anthony Kriminali Masila vs The State Rep By

[Cites 7, Cited by 0]

Madras High Court

Masila @ Anthony Kriminali Masila vs The State Rep By

The appellant is the sole accused in S.C.No.69 of 2013, on the file of the learned Additional District and Sessions Judge, Ramanathapuram. He stood charged for the offence punishable under Section 302 of the Indian Penal Code. By Judgment dated 08.06.2016, the Trial Court has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him, as detailed below Section of Law Sentence of imprisonment Fine amount 302 IPC To undergo imprisonment Rs.5,000/- in default to for life. undergo simple imprisonment for six months.

Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal.

2. The case of the prosecution, as put forth by its witnesses, is consciously narrated below:-

http://www.judis.nic.in 3 2.1. The deceased, in this case, is one Mr.Jesu. PW-1 is the younger brother of the deceased. He is a resident of Bamban Village, Rameswaram Taluk. PW-2 is the brother-in-law of the deceased. One and half months prior to 31.03.2012, the date on which the alleged occurrence took place, while the wife of the deceased was taking bath, the accused peeped into the bathroom. This resulted in quarrel between the accused and the deceased. The elders of the village pacified them and dispersed the crowd. This is stated to be the motive for the occurrence.

2.2. While so, on 31.03.2012, at about 05.30 PM, when the accused came to Priya Bakery Tea Shop, situated at Bamban Puliyamaram Bus Stop, the deceased also came there. It is the usual practise of the owner of Priya Bakery Tea Shop to place the plastic chairs for the convenience of the customers to take tea and snacks items. PW-1 to PW-4 were present in Appas Tea Shop, situated just opposite to the said Priya Bakery Tea Shop having tea. At that time, the deceased abused the accused in filthy language. Enraged over the same, the accused left the place. After sometime, the accused came to the said Bakery Shop with knife. When the deceased tried to get up from the plastic chair, the accused stabbed the deceased on his left http://www.judis.nic.in 4 chest near axilla. The accused fled away from the scene of occurrence with knife. PW-1 chased the accused for a while and returned back.

When PW-1 with the help of PW-6, the owner of Priya Bakery Tea Shop, lifted the deceased, they found that the deceased succumbed to the injuries. Immediately, PW-1 went to the Bamban Police Station and made a complaint at about 06.00 PM, on 31.03.2012, EX-P1 is the complaint and EX-P12 is the First Information Report. On receipt of the complaint, PW-22, the Special Sub-Inspector of Police, registered a case in Crime No.32 of 2012 for the offence under Section 302 of the Indian Penal Code. Then, he forwarded both the documents to the Court and handed over the investigation to the Inspector of Police.

2.3. Taking up the case for investigation, at 06.45 PM, on 31.03.2012, PW-23 proceeded to the place of occurrence, prepared an Observation Mahazer [EX-P3] and a Rough Sketch [EX-P13], showing the place of occurrence in the presence of PW-1 and another witness. He recovered bloodstained stones and sample stones from the place of occurrence. Then, he conducted inquest on the body of the deceased. EX-P14 is the inquest report. Then, he forwarded the dead body for postmortem through PW-20.

http://www.judis.nic.in 5 2.4. PW-21 - Dr.S.Arun Prabhu, conducted autopsy on the body of the deceased. EX-P11 is the postmortem certificate. He noticed the following injury:-

"A stab injury about 4 CM length in the left side chest near axilla".

He gave an opinion that the deceased would appear to have died of hemorrhage due to lungs fracture and stab injury.

2.5. Continuing the investigation, at about 10.20 PM, on 31.03.2012, PW-23 examined PW-2, PW-4, PW-5, PW-6 and PW-13 and recorded their statements. PW-23 also examined PW-19 and recorded his statement. On 01.04.2012, on completion of postmortem, PW-23 recovered bloodstained dress materials of the deceased, viz., white colour half shirt, [MO-4], baniyan [MO-5], Lungi [MO-6] and green colour jatti [MO-7] under separate mahazers. At 01.30 PM, on 01.04.2012, on receiving a secret information, PW-23 arrested the accused in the presence of PW-17 and another witness. On such arrest, he gave a voluntary confession, in which he disclosed the place, where he had hidden the knife. In pursuance of the same, the accused took the police and the witnesses to a waste dump yard near Jerold Nandu Company and produced the knife [MO-1]. PW-23 http://www.judis.nic.in 6 recovered the same under a mahazer. On returning to the Police Station, PW-23 forwarded the accused to the Court for judicial remand. He also handed over the material objects to the Court. On 01.04.2012, PW-23 examined PW-16 and PW-20 and recorded their statements. On 15.04.2012, PW-23 examined PW-12 and PW-15 and recorded their statements. On completing the investigation, he laid charge sheet against the accused, on 03.09.2012.

2.6. Based on the above materials, the Trial Court framed appropriate charge, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charge, he pleaded innocence. In order to prove the charges, on the side of the prosecution, 23 witnesses were examined, 16 documents and 7 material objects were marked.

2.7. Out of the said 23 witnesses, PW-1, who is the younger brother of the deceased and an eyewitness to the occurrence, had spoken about the entire occurrence in a vivid manner and also the complaint lodged by him. PW-2 to PW-7 had turned hostile and they had not supported the case of the prosecution in any manner. PW-8, yet another eyewitness to the occurrence, had stated that at about http://www.judis.nic.in 7 05.00 PM, on 31.03.2012, when he was taking Tea at Priya Bakery Tea Shop, the accused stabbed the deceased. PW-9, who also claims to be an eyewitness to the occurrence, had stated that at about 05.00 to 05.30 PM, on 31.03.2012, while he was purchasing grocery items in a shop situated opposite to Priya Bakery Tea Shop, he heard a noise and saw the accused fleeing away from the scene of occurrence with knife. PW-10, a resident of Bamban Chinnakadai Street, is running a shop, opposite to Priya Bakery Tea Shop. He had stated that on seeing the crowed gathered at Priya Bakery Tea Shop, he went to the said shop and saw the deceased lying in a pool of blood. PW-11 had not stated anything incriminating against the accused. PW-12 was doing business at Iceplant, Therkuvadi. He had stated that he came to know that the accused stabbed the deceased in front of Priya Bakery Tea Shop and fled away from the scene of occurrence.

2.8. PW-13 had stated that at about 06.45 PM, on 31.03.2012, he found the deceased lying in a pool of blood in front of Priya Bakery Tea Shop. He had further stated that he had signed in the mahazer relating to recovery of bloodstained cement floor and the sample cement floor. PW-14 had not stated anything incriminating against the accused. PW-15 is a hearsay witness. He came to know about the http://www.judis.nic.in 8 death of the deceased from others. PW-16 had stated that he signed in the mahazer relating to the recovery of bloodstained dress materials worn by the deceased. PW-17 had turned hostile and he had not supported the case of the prosecution in any manner. PW-18 is a scientific Officer, who had spoken about the chemical examination done by the chemical analyst. PW-19, a Head Constable, had stated that at 06.30 PM, on 31.03.2012, he handed over the complaint [EX- P1] and the First Information Report [EX-P12] to the Court, at 12.30 PM, on 01.04.2012, as directed by PW-23.

2.9. PW-20, yet another Head Constable, had stated that he handed over the dead body of the deceased to the Rameswaram Government Hospital for postmortem. PW-21, Dr.S.Arun Prabhu, has spoken about the autopsy conducted by him and his final opinion regarding the cause of death. PW-22, the then Special Sub-Inspector of Mandabam, had spoken about the registration of the First Information Report [EX-P12] on the complaint [EX-P1] made by PW-1 and handing over of the same to the Inspector of Police for investigation. PW-23, the then Inspector of Police, Bamban Police Station, had spoken about the investigation conducted by him and the filing of final report.

http://www.judis.nic.in 9 2.10. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he neither choose to examine any witness nor to exhibit any document. His defence was a total denial. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.

3. Mr.Veera Kathiravan, learned Senior Counsel for the appellant, would submit that the motive for the occurrence has not been established, as, according to the case of the prosecution, one and half months prior to 31.03.2012, while the wife of the deceased was taking bath, the accused peeped into the bathroom, which resulted in quarrel between the accused and the deceased. This is stated to be the motive for the occurrence. However, the wife of the deceased was not examined to prove the motive.

4. The learned Senior Counsel would further submit that PW-1 is the younger brother of the deceased. PW-8 and PW-9 are related to http://www.judis.nic.in 10 the deceased. All the witnesses are interested and closely related to the deceased and therefore, their evidences should be rejected in the absence of any corroboration from any independent source, since no independent witnesses had been examined to support the case of the prosecution in any manner, though the alleged occurrence took place in a peak hour, that too, in front a Bakery Shop, where several persons would have gathered for taking snacks.

5. The learned Senior Counsel would also submit that according to the case of the prosecution, EX-P1 was lodged by PW-1 at 06.00 PM, on 31.03.2012. However, EX-P1 and EX-P12 had reached the hands of the learned Judicial Magistrate, Rameswaram with delay of 181/2 hours, for which there is no explanation offered by the prosecution. Moreover, the statement of PW-8 under Section 161(3) of the Code of Criminal Procedure was recorded by PW-23 on 05.04.2012 and the same had reached the Court on 26.02.2013, for which also there is no plausible explanation offered by the prosecution.

6. The learned Senior Counsel would also submit that PW-1, PW-8 and PW-9 are stated to be the eyewitness to the occurrence. http://www.judis.nic.in 11 According to the case of the prosecution, on 31.03.2012, at about 05.30 PM, when the accused came to Priya Bakery Tea Shop, situated at Bamban Puliyamaram Bus Stop, the deceased also came there. PW-1 to PW-4 were stated to have been present in Appas Tea Stall taking tea, which is situated just opposite to the said Bakery Shop. At that time, the deceased abused the accused in filthy language. Annoyed over the same, the accused left the place. After sometime, the accused came back to the said Bakery Shop with knife. At that time, when the deceased tried to get up from the plastic chair, the accused stabbed the deceased on his left chest near axilla. PW-1 chased the accused for a while and returned back. When PW-1 and PW-6, the owner of Priya Bakery Tea Shop, lifted the deceased, they found that the deceased succumbed to the injuries. Thus, according to the learned Senior Counsel, had it been true that PW-1, being younger brother of the deceased, lifted the deceased, his dress materials would have been stained with blood. However, no bloodstained dress materials of PW-1 were seized.

7. The learned Senior Counsel would further submit that in cross-examination, PW-1 had categorically stated that the deceased took food an hour prior to the occurrence. However, the evidence of http://www.judis.nic.in 12 PW-21, the doctor, who conducted autopsy on the body of the deceased, reveals that the stomach of the deceased was found empty.

8. The learned Senior Counsel would also submit that PW-1, in his cross-examination, had stated that immediately within half an hour of the occurrence, the body of the deceased was taken to the hospital. However, PW-23, in his examination-in-chief, had stated that on completion of inquest, the dead body of the deceased was taken to the Rameshwaram Government Hospital, at 10.00 PM, on 31.03.2012, through PW-20.

9. The learned Senior Counsel would also submit that PW-9 claims to have witnessed the occurrence. He had stated, in his examination-in-chief, that the accused fled away from the scene of occurrence with knife, whereas, in cross-examination, he had stated that the knife was taken from Priya Bakery Tea Shop. Thus, according to the learned Senior Counsel, the occurrence would not have taken place, as it is projected by the prosecution. While concluding, the learned Senior Counsel would submit that PW-1 was an accused in a murder case, in which the brother of the accused - Mariyachengiskhan was the deceased and therefore, on account of http://www.judis.nic.in 13 this motive, PW-1 had roped in the accused in this case. The Trial Court, according to the learned Senior Counsel, without considering the above aspects, has convicted the accused and sentenced him to undergo imprisonment for life. Referring to the above grounds, the learned Senior Counsel has prayed for acquittal of the accused.

10. The learned Additional Public Prosecutor, would however, oppose this Criminal Appeal. According to him, it is a peak hour brutal murder, in which the accused stabbed the deceased on his left side chest near axilla. PW-1, the younger brother of the deceased, witnessed the entire occurrence and rushed to the Bamban Police Station and made a complaint immediately. The evidence of PW-1 is cogent and convincing. In addition to the above, the prosecution had examined PW-8 and PW-9 as eyewitnesses to the occurrence. They had also spoken about the occurrence in a vivid manner. Under such circumstances, no infirmity can be found on the conviction and sentence recorded by the Trial Court. Thus, the learned Additional Public Prosecutor would pray for dismissal of the Criminal Appeal.

11. We have given our anxious consideration to the above submissions made by the learned counsel on either side and perused the materials available on record.

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12. So far as the motive for the occurrence is concerned, according to the case of the prosecution, one and half months prior to 31.03.2012, the date on which the alleged occurrence took place, while the wife of the deceased was taking bath, the accused peeped into the bathroom, which resulted in quarrel between the accused and the deceased. The elders of the village gathered and pacified them. Thereafter, at about 05.30 PM, on 31.03.2012, when the accused came to Priya Bakery Tea Shop, situated at Bamban Puliyamaram Bus Stop, the deceased was also present. At that time, the deceased abused the accused in filthy language. Enraged over the same, the accused left the place. After sometime, the accused returned back to the said Bakery Shop with knife. When the deceased tried to get up from the plastic chair, the accused stabbed the deceased on his left chest near axilla and fled away from the scene of occurrence with knife. The deceased succumbed to the injuries.

13. When there was already quarrel between the accused and the deceased, which, according to the prosecution, resulted in the death of the deceased, in all fairness, the wife of the deceased would have been examined to prove the motive alleged by the prosecution. However, for the reasons best known to the prosecution, the wife of http://www.judis.nic.in 15 the deceased was not examined to prove the alleged motive between the accused and the deceased. Simply because it was alleged that there was some enmity between the accused and the deceased, on that score, we cannot rush to the conclusion that the accused had committed the crime, as the motive is always a double edged weapon. Thus, in our considered view, the motive for the occurrence has not been established.

14. Coming to the arguments advanced by the learned Senior Counsel for the appellant that there was delay of 181/2 hours in forwarding the First Information to the Court, according to the prosecution, the alleged occurrence took place at 05.30 PM, on 31.03.2012. The complaint [EX-P1] was lodged by PW-1 at 06.00 PM, on 31.03.2012. However, the First Information Report [EX-P12] had reached the learned Judicial Magistrate, Rameswaram, at 12.30 PM, on 01.04.2012. Thus, there is an inordinate, unexplained and enormous delay of 181/2 hours, as rightly pointed out by the learned Senior Counsel for the appellant. Had it been true that the First Information Report was registered at 06.00 PM, then, the fact as to why it had reached the learned Judicial Magistrate, Rameswaram, at 12.30 PM, on 01.04.2012 should have been explained by the http://www.judis.nic.in 16 prosecution to the satisfaction of the Court. The law mandates that as soon as the First Information Report is registered, the same should be despatched to the Court. This mandate is only a measure to prevent the police from manipulating the First Information Report. Here, in this case, this procedure has not been adopted and absolutely, there is no explanation regarding the said delay. In this regard, we may usefully refer to the judgment of the Hon'ble Supreme Court in Thulia Kali Vs State of Tamil Nadu reported in AIR 1973 SC 501, wherein, in an identical situation, the Hon'ble Supreme Court had concluded that the unexplained and inordinate delay creates doubt in the case of the prosecution. Applying the same to this case, in our considered view that there is initial doubt in the case of the prosecution.

15. Insofar as the delay in sending the statement recorded under Section 161(3) of the Code of Criminal Procedure Code is concerned, as rightly pointed out by the learned counsel for the appellant, according to PW-8, he went to the Police Station immediately on the next day of occurrence, viz., on 01.04.2012 and he was examined by the police only on 05.04.2012, viz., after lapse of four days of the occurrence. Though the statement of PW-8 under http://www.judis.nic.in 17 Section 161(3) of the Code of Criminal Procedure was stated to have been recorded by PW-23, on 05.04.2012, such statement was received by the learned Judicial Magistrate concerned only on 26.02.2013, viz., after lapse of ten months, for which there is no plausible explanation offered by the prosecution. PW-23 has also not given any explanation in sending the statement recorded under Section 161(3) of the Code of Criminal Procedure Code, belatedly, which would create doubt in the case of the prosecution that PW-8 has been inserted belatedly and examined as eyewitness to support the case of the prosecution.

16. Now, turning to the evidence of PW-1, if really PW-1 was present and he had witnessed the occurrence, PW-8 and PW-9, who were also stated to be the eyewitnesses to the occurrence, would have definitely mentioned in their examination about the presence of PW-1 at the time and place of occurrence. Neither in the examination-in- chief nor in the cross-examination, PW-8 and PW-9 had stated anything about the presence of PW-1. Likewise, PW-1 has also not stated anything about the presence of PW-8 and PW-9 at the time and place of occurrence. Similarly, either in complaint [EX-P1] or inquest report [EX-P14], the presence of PW-8, who is stated to be an eyewitness to the occurrence, has not been mentioned, which would http://www.judis.nic.in 18 create doubt in the case of the prosecution. However, PW-2 to PW-4, who, according to the prosecution, were present in Appas Tea Stall, along with PW-1, taking tea, which is situated just opposite to Priya Bakery Tea Shop, had turned hostile and they had not supported the case of the prosecution in any manner. Moreover, PW-1, in his cross- examination had stated that immediately after the occurrence, the body of the deceased was taken to the hospital. However, PW-23, in EX-P14, the inquest report, had clearly stated that the inquest was conducted from 08.15 PM to 10.15 PM. PW-23, in his examination-in- chief, had also stated that on completion of inquest, the dead body of the deceased was taken to the Rameshwaram Government Hospital, for postmortem at about 10.20 PM, on 31.03.2012, through PW-20. Thus, the presence of PW-1, in our considered view, is highly doubtful and he would not have witnessed the occurrence and he would have come to the place of occurrence at a later point of time, on hearing that the deceased was stabbed.

17. Further, according to the case of the prosecution, at about 05.30 PM, on 31.03.2012, the accused came to Priya Bakery Tea Shop, situated at Bamban Puliyamaram Bus Stop. At that time, the deceased also came there. PW-1 to PW-4 were present in Appas Tea http://www.judis.nic.in 19 Stall, situated just opposite to Priya Bakery Tea Shop taking tea. At that time, the deceased abused the accused in filthy language. This irked the accused and the accused left the place. After a while, the accused came back to the said Tea Stall with knife. At that time, when the deceased was trying to get up from the plastic chair, the accused stabbed the deceased on his left chest near axilla. PW-1 chased the accused for a while and returned back to the place of occurrence. When PW-1 with the help of PW-6, the owner of Priya Bakery Tea Shop, lifted the deceased, they found that the deceased succumbed to the injuries. Had it been true that PW-1, who is the younger brother of the deceased, lifted the deceased, when he was lying in a pool of blood, certainly, his dress materials would have been stained with blood. However, no bloodstained dress materials of PW-1 were seized. In the light of the above, coupled with the fact that there is an inordinate and unexplained delay of 181/2 hours in forwarding the complaint [EX-P1] and the First Information Report [EX-P12] to the Court and the improbabilities and the inconsistencies in the evidence of PW-1, which we have discussed hereinabove, we hold that the presence of PW-1, at the time of occurrence, is highly doubtful and therefore, we have no hesitation in rejecting his evidence. Accordingly, the evidence of PW-1 is rejected. http://www.judis.nic.in 20

18. Now, what remains for the prosecution is the evidence of PW-8 and PW-9. Their presence, at the time of occurrence, is by chance. It is too well settled that if a witness claims to have been present at the place of occurrence by chance, the reasons for her/his being present, should be explained to the satisfaction of the Court. In the absence of any explanation as to why and what for she/he came to be present at the place of occurrence, it would be difficult to believe her/his very presence. In this case, a close scrutiny of the evidence of PW-8 would show that his evidence, at the time of occurrence, is highly doubtful. The explanation offered by PW-8 is that at about 05.00 PM, on 31.03.2012, he had gone to Priya Bakery Tea Shop for taking tea and at that time, the accused had stabbed the deceased with knife. The above explanation offered by PW-8 is hard to be accepted, because, PW-8, in his cross-examination had stated that he did not see the deceased lying in a pool of blood before Priya Bakery Tea Shop. Moreover, PW-8, in his cross-examination, had stated that he was asked to appear before the Police Station. Accordingly, he appeared before the Bamban Police Station at 08.00 AM, on 01.04.2012. At that time, the accused was present in the Police Station and the police official shown the knife to PW-8, whereas, http://www.judis.nic.in 21 PW-23, the Investigating officer, in his examination-in-chief, had stated that the accused was arrested at 01.30 PM, on 01.04.2012. The above inconsistencies and coupled with the fact that the statement of PW-8 had reached the learned Judicial Magistrate concerned only on 26.02.2013, viz., after lapse of ten months, would go to show that PW-8 would not have been present at the time and place of occurrence and thus, his evidence is liable to rejected and accordingly, it is rejected.

19. Insofar as the evidence of PW-9 is concerned, in his examination-in-chief, he had stated that he went to a shop, situated just opposite to Priya Bakery Tea Shop to purchase grocery items and at that time, he saw the accused fleeing away from the scene of occurrence with knife. The above explanation offered by PW-9 is also hard to be accepted, for the simple reason that PW-9, in his examination-in-chief, had stated that he saw the accused taking to his heels with a knife. However, in cross-examination, he had stated that the knife was recovered from Priya Bakery Tea Shop. Thus, his very presence, at the place of occurrence, is also doubtful and his evidence evidence cannot be relied upon and his evidence is also rejected. http://www.judis.nic.in 22

20. In addition to the above, the place, where the alleged incident is stated to have taken place, is a very crowded place and though the prosecution had taken much effort to prove the case of the prosecution by examining independent witnesses, viz., PW-2 to PW-7, they had turned hostile and they had not supported the case of the prosecution in any manner and PW-1 and PW-8, who are the close relatives of the deceased, had deposed that they saw the alleged occurrence took place around 05.00 PM, on 31.03.2012. At this juncture, we have to necessarily state that the depositions of close relatives cannot be discarded, merely because they are relatives, but, their evidence has to be considered with due care and caution. If their evidences are to be believed, their evidences should inspire the fullest and implicit confidence of the Court or at least there should be some other evidence from independent sources to corroborate the same. In this case, for the flaws, which we have discussed hereinabove, we hold that PW-1, PW-8 and PW-9 are not believable and their very presence at the place of occurrence cannot be believed so as to sustain the conviction.

21. It is pertinent to note, at this juncture, that the alleged occurrence took place in front of Priya Bakery Tea Shop. The owner of http://www.judis.nic.in 23 the said shop had been examined as PW-6 to speak about the occurrence. He had stated in his evidence that the occurrence took place 11/2 metre away from his shop. He had heard about the occurrence and saw the deceased lying with injuries in a pool of blood. Immediately, he had bolted the door and left the place. He was not aware as to how the deceased sustained injuries and who had caused the injuries. PW-6 had completely turned hostile and he had not supported the case of the prosecution in any manner. Though the prosecution had made an effort to prove the case of the prosecution by examining the independent witness, [PW-6] in front of whose shop the alleged occurrence took place, it had failed in its attempt to establish the guilt of the accused. Though three witnesses, namely, PW-1, PW-8 and PW-9, had been examined as eyewitnesses to speak about the occurrence, in view of the flaws, improbabilities, inconsistencies and doubtfulness, which we have pointed out hereinabove, we are unable to attach any significance to the credibility of their evidence.

22. Now, turning to the medical evidence, as rightly pointed out by the learned Senior Counsel, PW-1, in cross-examination, had categorically stated that the deceased took food an hour prior to the http://www.judis.nic.in 24 occurrence. PW-8, who claims to be an eyewitness to the occurrence, in cross-examination, had stated that the deceased took bun at Priya Bakery Tea Shop. However, PW-21, the doctor, who conducted autopsy on the body of the deceased, opined that the stomach of the deceased was found empty. In this regard, we may usefully refer to a Judgment of the Hon'ble Supreme Court in Moti and others Vs. State of UP, reported in 2003 (9) SCC 444, wherein at Paragraph No.14, it has been held as follows:-

"14. It is rather surprising that the High Court should find this part of the medical evidence as being of no consequence at all. The High Court referring to this part of the medical evidence has observed: "In our opinion, the stomach contents are not very material to determine the time of incident." We are of the considered opinion that this view of the High Court is wholly erroneous. It may be possible to contend that the contents of the stomach may not always be an indicator of the time of death. But, in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased had his http://www.judis.nic.in 25 last meal, to say that the contents of the stomach have no material bearing on the determination of the time, in our opinion, is not acceptable. In the instant case, time of death being a material factor to verify the presence of the eyewitnesses, it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, there is a serious doubt as to the time of incident and the presence of the eyewitness at the time of incident and their narration of the incident also becomes doubtful".

23. In the case on hand, since the time of death is a material factor to verify the presence of the eyewitnesses, it was obligatory for the prosecution to clarify the discrepancy between the medical evidence and the ocular evidence. However, the prosecution had failed to do so, and as such, in our considered view, there is a doubt as to the time of occurrence and the presence of the eyewitness at the time of occurrence and consequently, the narration of the occurrence by the eyewitness account also become doubtful. http://www.judis.nic.in 26

24. Now, reverting back to the arrest of the accused at 01.30 PM, on 01.04.2012 by PW-23, in the presence of PW-17, as it is projected by the prosecution, PW-17, who was examined to speak about the recovery of MO-1, on the alleged disclosure statement made by the accused, had turned hostile and he had not supported the case of the prosecution in any manner. He had stated that he was asked by PW-23 to sign in the mahazer regarding the recovery of MO-1 in the waste dump yard situated in front of Jerold Nandu Company. Accordingly, he signed in the recovery mahazer. Moreover, PW-8, who claims to have witnessed the occurrence, had stated in his cross- examination that at about 08.00 AM, on 01.04.2012, he was directed to appear before the Police Station. At that time, the accused was present in the Police Station, whereas PW-23 had stated that at 01.30 PM, on 01.04.2012, on secret information, he arrested the accused near Bamban South Sea Shore and on his disclosure statement, MO-1 was recovered, which creates doubt in the case of the prosecution. Thus, once the arrest of the accused becomes doubtful, the consequential recovery of MO-1, on the disclosure statement made by the accused, cannot be believed.

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25. The prosecution has succeeded in proving that the death of the deceased was by homicide, but, who had caused the homicide of the deceased has not been established by the prosecution. The contradictions and the improbabilities, which we have dealt with hereinabove, would go to show that PW-1, PW-8 and PW-9 would not have seen the occurrence at all and they are all cooked up witnesses. The evidences of PW-1, PW-8 and PW-9 do not inspire the implicit and fullest confidence of the Court. There are lot of doubts in their evidence. Therefore, we are impelled to hold that the prosecution has failed to prove the case beyond reasonable doubts and thus, the appellant is entitled for acquittal.

26. In the result, ● this Criminal Appeal is allowed.

● The conviction and sentence imposed on the appellant by Judgment dated 08.06.2016 made in S.C.No.69 of 2013, on the file of the learned Additional District and Sessions Judge, Ramanathapuram, is set aside and the appellant acquitted of the charge framed against him.

● Fine amount, if any, paid by the appellant shall be refunded to him.

http://www.judis.nic.in 28 ● Bail bond, if any, executed by the appellant and the sureties shall stand terminated.


                                                         [R.P.S.J.,] &   [B.P.J.,]
                                                                19.02.2019
                      Index        : Yes/No
                      Internet     : Yes/No
                      NB




http://www.judis.nic.in
                                                        29




                      To
                      1.The Inspector of Police,
                          Pampan Police Station,
                          Ramanathapuram District.

2.The Additional District and Sessions Judge, Ramanathapuram.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

4.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in 30 R.SUBBIAH, J.

AND B.PUGALENDHI, J.

NB JUDGMENT MADE IN CRL.A[MD].No.266 of 2016 19.02.2019 http://www.judis.nic.in

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