Madras High Court
Vairavel vs State Through on 16 February, 2016
Author: M.Jaichandren
Bench: M.Jaichandren
T IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 16.02.2016 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal No.20 of 2012 Vairavel ... Appellant -Versus- State Through Inspector of Police, Sathyamangalam Police Station, Erode District. [Crime No.410 of 2010] ... Respondent Appeal filed under Section 374(2) of the Code of Criminal Procedure against the conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No.II, Gobichettipalayam, Erode District, in S.C.No.145 of 2011 dated 07.12.2011. For Appellant : Mr.L.Mahendran For Respondent : Mr.S.Shanmughavelayudham, State Public Prosecutor assisted by Mr.M.Maharaja, Addl. Public Prosecutor JUDGEMENT
[Judgment of the court was delivered by S.NAGAMUTHU.J.,] The appellant is the sole accused in S.C.No.145 of 2011on the file of the learned Additional Sessions Judge, Fast Track Court No.II, Gobichettipalayam, Erode District. He stood charged for the offences under Sections 302, 404 and 201 of IPC. By judgement dated 07.12.2011, the trial court convicted him under all the three charges and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for three months for offence under Section 302 of IPC; to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for two months for offence under Section 404 of IPC; and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for two months for offence under Section 201 of IPC. Challenging the said conviction and the sentence, the sole accused is now before this court with the present criminal appeal.
2.0. The case of the prosecution in brief is as follows:- The deceased in this case was one Mrs.Gowri. P.W.6 is her husband. They were living together as husband and wife. They were originally residing in the house belonging to one Mr.Prakash at Periyanna Nadar Street, Periyamodachur, as tenants. The accused was residing with his wife in yet another house within the same compound as a tenant.
2.1. P.W.7 Mr.Senthil @ Senthil Kumar was also residing for some time in the same compound in a different house along with his wife. In course of time, the deceased Mrs.Gowri had developed intimacy with P.W.7. P.W.6, the husband of the deceased came to know about the said illicit relationship through the accused. Therefore, in order to disrupt the said relationship, P.W.6, shifted his family to the house of one Mr.Pachaiyappan in the same village. Thus, the deceased and her husband were residing together at the house of Pachaiyappan.
2.2. On 22.06.2010, at about 10.00 a.m., the deceased called P.W.7 over phone and informed him that she was proceeding to Puliyampatti to meet him. P.W.7, in turn, told her not to come to Puliyampatti. At that time, P.W.7 was working in the farm of one Mr.Logachandran (P.W.8) at Puliyampatti. But, the deceased told him that she had already come to Puliyampatti and she was waiting at the bus stand and she wanted to discuss something with him. After taking leave from P.W.8, P.W.7 went to Puliyampatti bus stand and found the deceased along with the accused. P.W.7 enquired about the accused. The deceased told P.W.7 about the accused. The deceased then told P.W.7 that she wanted to discuss something privately with him. P.W.7, therefore, took her to the farm of P.W.8. The accused also followed them. In that farm , P.W.7 and the deceased were discussing and the accused was speaking to P.W.8, who was also in the farm. The deceased told him that her husband, who had come to know about her relationship with P.W.7 was abusing her and, therefore, she was ready to marry P.W.7. P.W.7 declined the said offer as he was already married and having children. P.W.7 persuaded her to go to her house. He took her back to the bus stand and after leaving her at the bus stand, he returned to his house. The accused also went along with the deceased in the bus. After an hour, the deceased again called P.W.7 over cellphone and informed him that she had gone to a temple and told him that she would return to her house after darshan. P.W.7 requested her to inform him after her safe return to her house.
2.3. On the same day, around 08.00 p.m., the accused called P.W.7 over cellphone and informed him that he along with the deceased had come out of their respective home and therefore, if they returned, it would create problem in both the families. Again after an hour, the accused called P.W.7 over cellphone and enquired whether the deceased had come to meet him. P.W.7 answered in the negative.
2.4. Meanwhile, P.W.6, the husband of the deceased, who found the deceased not returning home till 05.30 p.m. on 26.02.2010, informed her father (P.W.5) about the same. P.W.5 and P.W.6 went in search of the deceased to various places, but, they could not locate her anywhere.
2.5. On 24.06.2010, at about 01.00 p.m. P.W.1, a Forest Guard, working at Vadavalli Forest House in Sathyamangalam Forest Range, while on routine guard duty, noticed a dead body of a woman near Marappalam and Kurangupallai at Sathyamangalam Main Road at a distance of about 100 feet from the road. P.W.1 informed his immediate superior about the same and then, gave a complaint to the Sub Inspector of Police.
2.6. P.W.22, the then Sub Inspector of Police, Sathyamangalam Police Station, on receipt of the said complaint from P.W.1, registered a case in Crime No.410 of 2010 under Section 302 of IPC. Ex.P.1 is the complaint and Ex.P.13 is the FIR. She forwarded both the complaint and the FIR to the court and handed over the case diary to the Inspector of Police for investigation.
2.7. P.W.24, the then Inspector of Police, Sathyamangalam Police Station, took up the case for investigation. He visited the place of occurrence where the dead body was lying at 2.30 p.m. on 24.02.2010. He found extensive injuries on the dead body of the deceased indicating that she had been done to death. He prepared an observation mahazar (Ex.P.2) and a rough sketch (Ex.P3) at the place of occurrence in the presence of P.W.3 and P.W.4. He arranged for a photographer to take photographs at the place of occurrence including the dead body. P.W.20, the photographer accordingly came to the place of occurrence and took photographs (vide Ex.P11-Photographs with Negatives). Then, P.W.24, the Investigating Officer, conducted inquest on the body of the deceased in the presence of panchayatars on 24.02.2010 between 04.00 p.m. and 06.30 p.m. But, the investigation did not reveal the identity of the deceased. He forwarded the dead body to the mortuary at Government Hospital. In the course of investigation, he recovered some blood stained earth (M.O.1),sample earth (M.O.2) and a blood stained blue metal stone (M.O.3) from the place of occurrence under a mahzar (Ex.P.3). He also recovered a pair of brown colour chappal (M.O.4) and blue colour broken pieces of glass bangles (M.O.5) under a mahazar (Ex.P.4) in the presence of the same witnesses. He forwarded all these material objects to the court. In order to ascertain the identity of the dead body, he made arrangement for wide publicity of the photograph of the dead body in the local newspapers.
2.8. P.W.5, the father of the deceased, saw the newspaper on 25.06.2010 at around 07.30 a.m. and he was shocked to see the photograph of the dead body of his daughter Mrs.Gowri in the newspaper. He immediately informed the same to P.W.6 and other relatives and taking P.W.6 and other relatives, he rushed to Sathyamangalam Police Station. P.W.24, the investigating officer, showed the photographs of the dead body to P.W.6 and P.W.5 .They identified the same as that of the decesaed-Mrs.Gowri. Then, as instructed by P.W.24, P.W.5 and P.W.6 went to the Government Hospital at Sathyamangalam and after seeing the dead body, identified the same as that of the deceased Mrs.Gowri. On the dead body, a yellow colour churidar with read floral design prints and dupatta were found. They also identified the chappals belonging to the deceased. There was a black colour holy thread on her right wrist, which also indicated the identity of the deceased.
2.9. The dead body was thereafter sent for autopsy. P.W.18 conducted autopsy on the dead body of the deceased on 25.06.2010 at 03.00 p.m. He found the following injuries:-
"A moderately built Female body lying on its back at G.H. Mortuary, Sathyamangalam. Symmetrical. Eye lids open. Nose free, mouth open, tongue protruding out, teeth complete, ears-free . Hands free.
External Injuries: Contusion over right side of forehead and nose 10 cm x 5 cm extending from left eyebrow ***(sic) right zygoma and to the root of the nose. Abrasion below angle of mandible to lower end of chin 8 cm x 1 cm.
Internal examination: Opening of head: about 50 gram of blood clot present below right frontal region of scalp. Comminuted fracture of skull present over centre of forehead. Linear fracture extending from right zygoma to left zygoma 15 cm x 0.5 cm a linear fracture extending from centre of forehead to root of nose 5 cm x 0.3 cm. A linear fracture present in the middle cranial fossa extending below pituitary fossa to lateral end of vault 6 x 0.3 cm sub dural hematoma present of 80 grams. Brain liquefied mixed with blood.
Thorax: No fracture ribs, 100 ml of blood stained fluid in the thoracic cavity present. Heart 250 grams, empty, Lungs - right Lung -425 grams partially decomposed. Left lung 350 grams partially decomposed. Abdomen: Opened with bursting sound, stomach and intestines distended with gas , pale, stomach empty. Liver 1100 grams partially decomposed. Spleen - partially decomposed 90 grams. Kidneys- 80 grams each partially decomposed, bladder empty.
Examination of Face: Infiltration of blood present over upper half of left sterno cleidomastoid and strap muscles of neck, infiltration of fluid blood present over the soft tissues over the trachea, blood stained fluid present in tracheal mucosa on examination. Hyoid bone preserved. A brown colored cloth wind around the neck with the knot near the right chin.
External Examination:
Vulva - appears to be normal Vagina - normal.
Hymen - shows old tears Uterus - cut section - Normal cavity empty"
He preserved the hyoid bone and viscera for examination. He preserved a piece of small intestine and kidney for the purpose of examination. He forwarded all these visceral organs for chemical examination. Vaginal smear was also taken from the dead body and the same was also sent for chemical examination. The chemical analysis report revealed that there was no semen found in the vaginal smear. The report further revealed that there was no fracture of hyoid bone. The skull was preserved and the same was sent for superimposition test. Finally, P.W.18 gave an opinion that the death of the deceased was due to the injuries, more particularly, the head injury. Ex.P.7 is the postmortem certificate. Ex.P.8 and Ex.P9 are the chemical analysis report.
2.10 When the investigation was in progress, the accused voluntarily appeared before P.W.9, the then Village Administrative Officer of Chikkarasampalayam Village in Sathyamangalam Taluk. His Assistant Mr.Subramani (P.W.10) was with him. On 29.06.2010 at 09.00 a.m. , the accused appeared before him and wanted to confess. P.W.9 ascertained that he was in a mood to confess voluntarily. The accused started confessing which P.W.9 reduced into writing and the accused subscribed his signature. Then, along with a report , he took the accused and the confession statement to the police station and produced them. P.W.24, arrested the accused in the presence of P.W.9 and P.W.10. On such arrest, the accused again gave a voluntary confession, in which, he disclosed that he had sold the gold jewels to P.W.19 and purchased new gold jewels. The accused took P.W.24 and the witnesses to the shop of P.W.19 and identified P.W.19. According to P.W.24, the investigating officer, gold jewelleries were recovered from P.W.19 . Similarly, the new gold jewelleries were also recovered. [Neither mahazars nor the golden jewelleries have been marked in evidence]. Thereafter, P.W.24 altered the case into one under sections 376, 302, 379 and 201 of IPC and submitted alteration report to the court. Then, he forwarded the accused for medical examination to verify as to whether he was capable of performing penile sex with a woman. [The Doctor, who issued the certificate, has not been examined]. In the course of investigation, P.W.24, examined many more witnesses and recorded their statements. He forwarded the material objects for chemical examination and obtained chemical analysis report. The chemical analysis report indicated that there were human blood stains on some of the material objects seized from the place of occurrence. On completing the investigation, P.W.24, laid the final report against the accused.
3.0. Based on the above materials, the trial court framed as many as three charges under Sections 302, 404 and 201 of IPC. The accused denied the same. In order to prove the same, on the side of the prosecution, as many as 24 witnesses were examined, 15 documents and 5 materials objects were marked. M.O.1 is the blood stained earth, M.O.2 is the sample earth, M.O.3 is the blood stained blue metal stone, M.O.4 is a pair of brown colour chappal and M.O.5 is the broken pieces of glass bangles. These materials objections were recovered from the place of occurrence.
3.1. Out of the said witnesses, P.W.1 and P.W.2, the officials of the Forest Department, Government of Tamil Nadu, have stated that the dead body of the deceased was found on 24.06.2010 at 01.00 p.m. and they have also spoken about the complaint made by P.W.1 to the police. P.W.3 and P.W.4 have spoken about the preparation of the observation mahazar, rough sketch and the recoveries of the material objects M.O.1 to M.O.3 and M.O.4 and M.O.5 from the place of occurrence under Ex.P.3 and Ex.P.4 respectively.
3.2. P.W.5 and P.W.6, the father and the husband respectively of the deceased have stated that the deceased was missing from 22.06.2010 onwards and they saw the photographs of the dead body of the deceased in the newspaper on 25.06.2010 at 07.30 a.m. and latter, they identified the photographs of the dead body and the jewels and then identified the dead body. They have also stated that on the dead body, there was a yellow churidar with red floral design prints, kadhu mattal, a black colour holy thread on the right wrist, allkadhu (a gold ornament normally worn on the ear lobe). But, none of these material objects have been marked in evidence. The family members of the deceased have not even been asked to identify these material objects in court also. P.W.7 and P.W.8 have spoken about the fact that they lastly saw the accused and the deceased together at Puliyampatti bus stand on 22.06.2010 at 10.00 a.m. P.W.7 has further stated that at around 08.00 p.m. on the same day, the deceased spoke to him over phone and informed that she had gone to the temple along with the accused and after some time, the accused also spoke to him informing him that they had come out of their respective family and therefore, they were afraid of going back to their home. He has further stated that after an hour, the accused enquired over phone as to whether the deceased had come to him. P.W.9 has spoken about the extra judicial confession allegedly given to him by the accused on 29.06.2010 at 09.00 a.m. P.W.10 has turned hostile and he has not supported the case of the prosecution in any manner.
3.3. P.W.11 has stated that the accused approached him on 29.06.2010 at 07.00 a.m. and requested him to help him to surrender before the Village Administrative Officer to give a confession as he was afraid of the police. He has further stated that P.W.11 produced him before P.W.9 at 09.00 a.m. P.W.12 has stated that on 22.06.2010 at 10.00 a.m. she found the deceased and the accused standing together at Gopi Bus Stand. She has further stated that when she enquired, she told that the accused was a known person to her. She has, however, admitted that the accused was not previously known to her. P.W.13 to P.W.16 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.17, the Head Clerk of the Magistrate Court at Sathymangalam, has spoken about the receipt of the chemical analysis report. P.W.18 has spoken about the postmortem conducted and his final opinion regarding the cause of death.
3.4. P.W.19, the jewellery shop owner, has stated that on 23.10.2010, the accused came to his shop and sold gold jewelleries weighing 25.250 grams and purchased new jewelleries. He issued Ex.P.10 receipt for the same. He has further stated that he returned to P.W.24, only a gold ingot. While under examination, he was not asked to identify any jewellery in the court. P.W.20 has spoken about the photographs which were used subsequently for identifying the dead body. P.W.21 has stated that he took the dead body to the Government Hospital for postmortem, as instructed by the investigating officer. P.W.22 has stated about the registration of the case and handing over of the case diary to the Inspector of Police for investigation. P.W.23 has stated that he handed over the FIR and the complaint to the court. P.W.24 has spoken about the entire investigation conducted by him and the filing of the final report against the accused.
4. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, he denied the same. However, he did not choose to examine any witness on his side nor did he mark any document. His defence was a total denial. Having considered all the above, the trial court convicted the accused under all the three charges and accordingly punished him as detailed in the first paragraph of this judgement. That is how, the accused is now before this court with this criminal appeal.
5. We have heard the learned counsel for the appellant and the learned State Public Public Prosecutor appearing for the respondent and also perused the records carefully.
6. The learned counsel for the appellant/accused took us through the entire records in order to substantiate his case that the prosecution has failed to prove its case beyond all reasonable doubts and that the trial court has convicted the appellant on mere surmise.
7. Mr.M.Maharaja, the learned Additional Public Prosecutor appearing for the State took much pains to support the judgement of the trial court by taking us through various evidences let in. When the argument was in progress, Mr.S.Shanmughavelayudham, the learned State Public Prosecutor also joined him and he made further submissions.
8. After having heard the learned counsel on either side and after having perused the records carefully, we noticed that there were lot of shocking instances and serious lapses committed by the Police, the Additional Public Prosecutor, who conducted the prosecution, and the Trial Court. Therefore, we directed the investigating officer to be present before this court and, accordingly, he was present. The Inspector General of Police, Head Quarters (Law and Order) was also present as directed by this court. Though we directed the Additional Public Prosecutor, who conducted the case before the trial court to be present on the first day of final hearing, he was not present and that the learned State Public Prosecutor submitted that due to indisposition he was not able to appear. We have considered the submissions made on either side and also perused the records carefully.
9. At the out set, we wish to state that we do not want to express any opinion regarding the disputed facts involved in this appeal as we intend to remit the matter back to the trial court for fresh disposal. We, therefore, confine ourselves to express only the reasons for our conclusion that the matter requires to be remitted back to the trial court for fresh disposal.
10. From the records, it is seen that according to P.W.5, the father of the deceased, when he read the newspaper on 25.06.2010 at 07.30 a.m. he found in the newspaper, the photographs of the dead body of his daughter, the deceased-Mrs.Gowri. The said newspaper has not been marked. After seeing the newspaper, according to P.W.5, he along with P.W.6, the husband of the deceased, had gone to the police station and in the presence of P.W.24, he identified the deceased from out of the photographs of the dead body taken at the place of occurrence. P.W.20, the photographer has been examined. He has stated that he took photographs of the dead body at the place of occurrence from eight angles. When P.W.6 and P.W.7 were examined, they were not asked to identify these photographs (Ex.P.11-Photographs). The photographs were marked only through P.W.20. Thus, there is no evidence, as of now, through P.W.5 and P.W.6 that the dead body found in Ex.P.11 series was that of the deceased-Mrs.Gowri.
11. According to P.W.5 and P.W.6, then they went to the Government Hospital at Sathyamangalam, where they saw the dead body. According to the Doctor (P.W.18) the dead body was in a highly decomposed condition and therefore, identity could not be made out. The body was found bloated and peeling of skin was noticed on the entire body. There were also maggots crawling on the dead body. The mouth was opened, the tongue was protruding out. Since the dead body was beyond recognition, P.W.5 and P.W.6 identified the same from out of the yellow colour Churidar with red floral design prints found on the dead body and also from out of the black colour holy thread tied on her right wrist. They have further stated that they also identified her chappals. But, unfortunately and shockingly, these material objects namely, churidar, dupatta and black colour holy thread have not been marked in evidence at all. Though the records reveal that they were recovered by P.W.24, it is not known as to what had happened to these material objects and as to why they were not marked. When these are the objects by which P.W.5 and P.W.6 could identify the dead body, it is not known as to why the prosecuting agency omitted to prove these material objects through the appropriate witnesses, more particularly, through P.W.5 and P.W.6.
12. P.W.18, the Doctor has further stated that he preserved the skull for superimposition test. He has further stated that the skull was sent for superimposition. But, a report was received from the Forensic Lab stating that the same could not be used for superimposition test inasmuch as the skull had lost its shape due to fracture. But, P.W.17, the Head Clerk of the Magistrate Court, has been examined to speak about the forwarding of material objects for chemical examination. In his evidence, he has stated in a very vague manner that he received a request from the investigating officer to forward the material objects for chemical examination and he sent the same for chemical examination and a report was also received in this regard. Absolutely, there is no evidence to show as to what were the materials sent for chemical examination and whether the skull was sent for superimposition test and if so, what was the photograph that was sent for the said purpose.
13. P.W.24, the investigating officer has not stated anywhere that he collected the photographs of the deceased and sent it for comparison by means of superimposition. No such photograph has been marked in evidence. It is not explained to the court as to when and from whom such live photograph of the deceased was received and when it was sent for superimposition test. Neither any photograph has been marked nor any witness has stated that he gave such photograph to the investigating officer. This anomaly has also not been explained by the prosecution. The expert who allegedly gave the report that superimposition test could not be conducted also has not been examined. The report from the forensic laboratory expressing that superimposition test could not be conducted due to damage caused to the skull also has not been marked in evidence.
14. The accused, according to the case of the prosecution, allegedly appeared before P.W.9 through P.W.11 on 29.06.2010 at 09.00 a.m. and made an extra judicial confession. We do not want to express any opinion at this stage as to whether the said extra judicial confession could be believed as true or not. It is the further evidence of P.W.9 that he produced the accused before P.W.24 and P.W.24 immediately arrested him. While in custody, the accused made a disclosure statement and out of the said disclosure statement, he took P.W.24 and the witnesses to the shop of P.W.19 and identified P.W.19. According to the disclosure statement, he had sold old gold jewelleries to P.W.19. P.W.19 has admitted that the accused came to his shop on 23.10.2010 and sold old gold jewelleries weighing 25.250 grams and purchased new gold jewelleries weighing 8.700 grams. Ex.P.10 is the receipt for the same. The original receipt book has not been marked in evidence. It is not explained to the court as to whether the receipt has been compared to the jewels which were allegedly purchased by accused. P.W.19 has further stated that he returned back to P.W.24 on 29.10.2010 only a gold ingot whereas, P.W.24 has stated that he recovered new gold jewelleries numbering four items and a gold plate. It is shocking to notice that the mahazar for the recovery of the new gold jewelleries numbering four and the mahazar for the recovery of the gold plate have not been marked at all in evidence. Not only that, neither the new gold jewelleries were marked nor the gold plate was marked in evidence. P.W.19, as we have already pointed out, has stated that he returned only a gold ingot whereas, according to P.W.24, what was recovered was only a gold plate. The learned Public Prosecutor would submit after going through the case diary that after purchasing the old gold jewelleries from the accused, P.W.19 had pressed the same and such pressed gold items was recovered from P.W.19. Since the mahazar for the recovery of gold items from P.W.19 has not been marked, we are not able find out as to what were the gold jewelleries or gold items recovered from P.W.19. It remains as a mystery as to whether the recovery made by P.W.24 from P.W.19 was a gold ingot or a gold plate. Similarly, it is not explained as to why the new gold jewelleries numbering four also have not been marked in evidence. Neither any mahazar for the recovery of these objects has been marked. P.W.24 while giving evidence has given a very vague explanation stating as follows:-
"jfL ePjpkd;wj;jpy; xg;gilj;njd; vd;Wk; Fw;wtpay; ePjpkd;wk; jpU.j';fnty; vd;gthplk; ,ilf;fhy ghJfhg;gpw;fhf bfhLf;fg;gl;Ls;ssJ/ mij ePjpkd;wj;jpy; jhf;fy; bra;ag;gltpy;iy/ (bfshpapd; fzth;) g[J eiffs; mapl;lk; 1 - 4 rPhp!; ntyha[jk; vd;gthplk; 8/7/11 ePjpkd;wj;jhy; ,ilf;fhy ghJfhg;gpw;fhf xg;gilf;fg;gl;Ls;ssJ mJ ePjpkd;wj;jpy; xg;gilf;fg;glhjjhy; Fwpaplg;gltpy;iy/"
which means "I handed over a gold plate to the Judicial Magistrate Court and the same was entrusted to Mr.Thangavel for interim custody. But, the same was not produced before the court by him. The new gold Items 1 to 4 (series) were entrusted to one Mr.Velayudham on 08.07.2011 by the court for interim custody, but the same were also not produced. Therefore, these properties could not be marked in evidence."
15. This observation by the court which has been recorded as a part of evidence of P.W.24 would only reflect the total indifference and ignorance of the learned presiding Judge of the court who conducted the trial as well as the learned Additional Public Prosecutor who conducted the case for the prosecution. Neither the Additional Public Prosecutor, nor the trial court directed the persons to whom the properties were handed over for interim custody to produce the same in court so as to prove the same in evidence.
16. From the above observation, it is seen that the new gold jewelleries numbering four were entrusted to one Mr.Velayudham. It is not known as to who is that Velayudham and as to how he is interested in the said properties. It is needless to point out that it is the duty of the Additional Public Prosecutor in charge of the case to conduct a witness to speak about the relevant facts. In the instant case, the learned Additional Public Prosecutor, who conducted the trial, has miserably failed to conduct P.W.24 and other witnesses to speak about the relevant facts which would be very essential for a just conclusion in the case.
17. Next, there is an evidence that the accused was sent for medical examination to examine as to whether he was capable of performing penile sexual intercourse with a woman. The Doctor, who conducted medical test, has not been examined The certificate issued by him has been marked as Ex.P.15. Undoubtedly, Ex.P.15 certificate is not admissible in evidence as the contents of the same have to be proved only through the said Doctor. It is not explained to the court as to why the said Doctor was not examined.
18. P.W.7 and P.W.8 are the vital witnesses for the prosecution. P.W.7 and P.W.8 have claimed that they did not know the accused previously. They have stated that they had lastly seen the deceased in the company of the accused on 22.06.2010. It is not explained to the court as to why no test identification parade was conducted so as to enable these two witness to identify the accused. This is only a flaw. But, at the same time, we do not want to express any opinion at this stage as to whether, even in the absence of such test identification parade, identification made by these witnesses for the first time in court could be believed and given weightage of as they had occasion to speak to the accused for a considerable time. It is not as though they had only a fraction of minute to have the glimpse of the features of the accused. Therefore, it is for the trial court to consider whether to believe the identification made by these witnesses even though there was no test identification parade conducted.
19. P.W.7 has stated that the deceased spoke to him over his mobile on 22.06.2010 at 10.00 a.m. Similarly, on the same day, after some time, the deceased again spoke to him over phone and informed that she had gone to a temple. Similarly on the same day, at about 08.00 p.m. the accused spoke to him and informed that he and the deceased were afraid of going back to their respective home since they had eloped together. He has further stated that P.W.24 collected the mobile number details of the accused as well as the deceased. The investigating Officer could have done better by collecting the call details of these cell phones. It is unfortunate that these cell phones have also not been recovered. Further, not even a single question was asked to P.W.7 as to what was the mobile number of the deceased and that of P.W.7. Nothing was elicited either from P.W.5 or P.W.6 as to what was the cell phone number of the deceased. Had these things been done, the evidence of P.W.7 and P.W.8 would have got corroboration from scientific source. Even now, it is not too late for the prosecution to collect these materials and produce them before the trial court after furnishing the copies of the same to the accused. The trial court will be well within its jurisdiction and power under Section 311 of Cr.P.C. to call the relevant witnesses to let in evidence and permit the prosecution to prove the same in evidence and to bring on record all the relevant evidences in this regard.
20. With this, we wish to stop. We do not want to make any more comments about the evidences available on record, inasmuch as, for the purpose of remanding the mater back to the trial court, the above discussion, in our considered view would be sufficient. We are afraid, if any more comments about the quality of the evidence collected, the quality of the investigation done and the quality of the evidence let in , the manner in which the trial was conducted they may influence the trial court when the trial court disposes of the case afresh. We only add that if we continue to make such comments, the same would add many pages to this judgement.
21. For the anomalies discussed above, if we have to acquit the accused, in our considered view, it would not amount to doing justice. Doing justice which is fair, just and reasonable by following the procedure, both procedural and substantive, as guaranteed under Article 21 of the Constitution of India, is the paramount duty of this court. To be fair does not mean to be fair only to the accused in the matter of trial so as to have concern for the liberty and life of the accused alone. The criminal court has been burdened with constitutional obligation to be fair not only to the accused, but to the victim and her family members and also to the society at large. The State [society] is more concerned about the welfare of the people for whom only the State has made the laws regulating the conduct of the people thereby declaring any deviation as an offence. The criminal justice delivery is not the exclusive job of the judge alone. It involves the prosecuting agency, the public prosecutor , witnesses , the accused and the defence counsel. In short, there are three major stake holders in the system. Every stake holder has got his own duty to perform so to ensure that justice and justice alone is done to the litigants and to the society. Even if one stake holder shows indifference, it is not unlikely that justice will fall as a victim. The stake holders before the criminal courts should have the satisfaction, at the end of the day, that justice has been done. The Public Prosecutors are not mere mouthpieces of the police. Time and again, it has been stated by the Hon'ble Supreme Court that they are the officers of the court. Similarly, the counsel appearing for every accused is also an officer of the court. The Public Prosecutor owes a onerous duty towards the system to help the system to succeed in its endeavour to deliver justice. The presiding Judge of a criminal court conducting trial is expected to be a participating judge and he should not be a silent spectator as though he were a referee in a match having no interest in the result of the game. The Judge has got inherent equal responsibility to ensure that justice and justice alone is done in the case and he should not allow the justice to be killed at the altar of the temple of justice. He should exercise his power under Section 311 of Cr.P.C. and Section 165 of the Evidence Act to collect sufficient evidence on record to do justice in the event either the State or defence fails to bring the necessary evidence on record . In our experience, we have seen, seldom, the power under Section 311 of Cr.P.C. and Section 165 of the Evidence Act are exercised by the courts. The maker of the Evidence Act, the great Jurist Mr.Stephen has devoted a complete Chapter as to how the witnesses are to be examined in court. The Act deals with the questions which are lawful and questions for which the witnesses can be compelled to answer and Judges power to put question. In the instant case, it is unfortunate that the learned trial Judge proved himself to be a mute spectator without exercising his power under Section 165 of the Evidence Act and Section 311 of the Code of Criminal Procedure. We regret that in the instant case, all the three stake holders have miserably failed in discharging their judicial and as a result, in order to avoid miscarriage of justice, we have to, now, remit back the matter to the trial court for fresh disposal. This ordeal involving the valuable judicial time of the court could have been avoided provided all the three stake holders had conducted in the manner expected of from them by the system. Let this case be yet another and final case for these stake holders to correct themselves in the days to come so as to avoid these kinds of adverse comments from the higher judiciary as well as from the general public and to see that nothing is done imperfectly. We only remind these stake holders that the last hope of the citizens of this country is the judiciary and if the judiciary struggles to do justice, that is not good for the welfare and well-being of the society. Let the stake holders keep themselves reminded of their responsibilities. Let us earnestly believe that there will not be any occasion for us in future to make these kinds of comments. The readers of this judgement may also have a look into the judgement of this court in Chandrappa v. State, (2010) 2 MLJ (Crl) 441 wherein also similar hope was expressed after highlighting the shortcomings in the conduct of the court.
22. In the result, the appeal is allowed in the following terms:-
(i) The conviction and sentence imposed on the appellant/accused by the trial court is hereby set aside;
(ii) the case in S.C.No.145 of 2011 is remitted back to the trial court for fresh disposal in accordance with law.
(iii) The prosecution shall be at liberty to recall any witness already examined or summon any person afresh either already cited or not as a witness in the final report and examine them.
(iv) The prosecution shall also be at liberty to prove any document in evidence after furnishing copies of the same, well in advance, if such copies have not been already furnished to the accused.
(v) The accused shall also be entitled to recall any witness for further cross examination of any prosecution witness or to examine any defence witness on his side and also to prove any document.
(vi) The trial court shall be at liberty to summon any document or any witness in exercise of its power under section 311 of the Code of Criminal Procedure, 1973 and under section 165 of the Evidence Act, 1872, to collect the relevant evidence for a just conclusion in the case.
(vii) It is made clear that the the observations made in this judgement are only for the purpose of disposal of this criminal appeal and the trial court shall not take them as adjudication on the issues involved in this case.
(viii) The trial court shall, soon after the receipt of the records, issue notice fixing a date for hearing to both parties and proceed further as directed above. At any rate, the trial court shall dispose of the case within a period of six months from the date of receipt of a copy of this judgement.
The Registry is directed to send back the trial court records forthwith.
Index : yes. [M.J.,J.] [S.N.,J.]
Internet : yes. 16..02..2016
kmk
To
1.The Addl. Sessions Judge, FTC-II, Gobichettipalayam, Erode
District.
2.The Inspector of Police, Sathyamangalam Police Station,
Erode District.
3.The Public Prosecutor, High Court, Madras
M.JAICHANDREN.,J.
AND
S.NAGAMUTHU.J.
vr / kmk
Criminal Appeal No.20 of 2012
16..02..2016