Madras High Court
Solamalai vs The State Rep. By on 27 October, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 4.8.2022
Delivered on : 22.8.2022
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Criminal Appeal No.790 of 2017
Solamalai Appellant
vs.
The State rep. by
The Inspector of Police,
J-3, Guindy Police Station,
Chennai.
(Crime No.927/2013) Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C. to set aside
the judgment of the Sessions Judge, Mahila Court (FAC), Mahalir
Needhimandram, Chennai made in S.C.No.244 of 2014 dated
27.10.2017.
For Appellant : Mr.R.C.Paul Kanagaraj
For Respondent : Mr.Babu Muthumeeran,
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
S.VAIDYANATHAN, J.
and A.D.JAGADISH CHANDIRA,J.
'Law is in search of proof, not Truth' - Justice M.Srinivasan The Appeal has been filed seeking to set aside the order dated 27.10.2017 passed by the Sessions Judge, Mahila Court (FAC), Mahalir Needhimandram, Chennai made in S.C.No.244 of 2014.
2. The appellant stands convicted and sentenced as under:-
Legal Sentence
Provision
341 IPC One month rigorous imprisonment
302 IPC Life imprisonment with fine of Rs.5000/- in
default to undergo a further period of 3 months imprisonment 506(ii) One year rigorous imprisonment
3. Brief facts of the prosecution case:-
i) One M.Sekar, working as Dabethar in Madras Race Club has lodged a complaint, Ex.P1 dated 14.8.2013 to the Inspector of Police, J3 Gunidy Police Station alleging that he is serving as Dabethar for one Aruna, the Additional Secretary in Madras Race Club (the deceased) and on that day in the morning at 10.00 am, he had attended his duty. He alleged that with regard to some disputes https://www.mhc.tn.gov.in/judis 3 raised by some labourers with regard to their pay, a proceedings is pending in the Labour Court and whileso, the deceased Aruna had attended a meeting in the office at about 5.00 pm and PW1 had gone to the office and thereafter, at about 7.20 pm, when he went through the Umbrella Gate to the office, the deceased was coming in the opposite talking over her mobile phone and she had asked PW1 to bring another phone available in the office room as the phone she was using by then was not working properly and accordingly, he took a few steps to go to the office by passing the deceased and by that time, he heard an alarming sound from the deceased and when he had turned, he saw the appellant\accused by holding her face with his left hand cutting the neck of the deceased with the knife and he had on seeing the same, tried to prevent the attack by pulling the hands of the appellant and since, he could not succeed in his attempt, he had raised hue and cry seeking help and thereupon, his colleagues viz., Driver Dinesh (PW8), Kalaiselvi (PW2) and some security staff had rushed to the spot and tried to prevent the attack, but, the appellant/accused had threatened all of them that he would attack them also and and hence, they kept away and by that time, the appellant/accused had cut the neck of the deceased and stabbed on the face, stomach and other parts of the deceased and thereupon, https://www.mhc.tn.gov.in/judis 4 they were stunned and some of the staff, who gathered there, had run away from the scene and the appellant\accused had also run away from the scene and after some time, the victim Aruna died.
Contending so, PW1 had sought for initiating action against the appellant\accused.
ii) Based on the complaint, Ex.P1, the Inspector of Police, J3 Guindy Police Station, PW28, who was on duty on 14.8.2013 at 8.00 pm, had registered the same as FIR, Ex.P32 in Crime No.927 of 2013 for the offences punishable under Sections 341, 302 and 506(ii) IPC, sent the FIR to the court concerned and took investigation of the case. On the same day, at 8.30 pm, he visited the scene of occurrence viz., near the Umbrella Gate and prepared the observation mahazar, Ex.P14 and Ex.P33 in the presence of witnesses Velankanni (PW13) and Durgaprasad. On the same day at 9.00 pm, in the presence of the same witnesses, he had recovered blood stained cement surface, M.O.2, ordinary cement surface, M.O.3, Nokia Black colour Cellphone with Airtel Sim, M.O.4, Broken Brown colour Spectacles, M.O.5, Ladies Footwear (right side), M.O.6 under seizure mahazar, Ex.P15. He had enquired the witnesses Velankanni and Durgaprasad and recorded their statements. On the same day, from 9.15 to 10.45, he had conducted inquest on the dead body in the https://www.mhc.tn.gov.in/judis 5 presence of panchaytdars Palani, Swaminathan, Subramanian, Antic, Krishnan and prepared inquest report, Ex.P34 and thereafter, he had sent the dead body through the police constable Sudhakar for post mortem.
iii) PW21, Dr.Arun, who conducted the autopsy on the dead body had issued the postmortem certificate, Ex.P21 opining that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. He found the following injuries on the body of the deceased Aruna:-
"1) Oblique cut injury of size 5 x 0.5 x 0.5 cms.
seen over centre of forehead / extending upto left side of forehead;
2) Oblique cut injury of size 2.5 x 0.1 x 0.1 cm. seen over outer margin of (L) eyebrow tailing towards (L) upper eyelid.
3) Oblique cut injury of size 5.5 x 0.5 x 0.5 cm. seen below (L) eye over (L) cheek.
4) Oblique cut injury of size 9 x 0.5 cms. x Bone deep seen over (L) cheek in (L) Preaurcular area;
5) Scratch abrasion of size 4 x 0.5 cms. seen on front of (R) Shoulder;
6) Stab injury of size 2.5 x 1 x cavity deep seen over upper part of (R) side of abdomen 25 cms. below Right ripple. on dissection, fracture of 12th rib, underlying stab injury of size 1.5 x 0.5 x 0.5 cms. seen over (R) of liver;
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7) Oblique cut injury of size 2 x 0.5 x 0.5 cms. seen over front of (R) hand.
8) Oblique cut injury of size 1.5 x 0.5 x 0.2 cm. seen over front of middle of (R) thumb;
9) Oblique cut injury of size 1.5 x 0.2x 0.2 cms. seen over front of Dental part of middle finger.
10) Oblique cut injury of size 1 x 0.2 x 0.2 cms. seen over front of Dental Part of Right ring finger;
11) Vertical oblique cut injury of size 6 x 1.5 x 0.2 cms. seen over back of right hand;
12) Horizontal oblique cut injury of size 0.5 cm. seen above the previous injury over back of Right hand;
13) OCI of size 1.5 x 0.2 x 0.2 cm. seen over front of upper Part of left side chest;
14) Defensive OCI of size 2 x 0.5 x 0.2 cms seen over front and back of left thumb;
15) Defensive cut injury of size 1.5 x 0.2 x 0.2 cm. seen over front of middle of left index finger.
16) Defensive cut injury of size 1 x 0.2 x 0.1 cm. and 1 x 0.2 X 0.2 cms. seen over front of middle and distal part of left middle finger;
17) OCI of size 9 x 1.5 x 1.5 cms. back of outer aspect of lower part of left thigh extending upto left knee;
18) OCI of size 4 x 1.5 x 15 cms. seen lateral to the previous injury merging previous injury; https://www.mhc.tn.gov.in/judis 7 Neck:
19) Oblique cut injury of size 13 x 1 x 1 cms. seen over front of neck 4.5 cms. below the chin extending from 5 cms from left angle of jaw to 2 cms. right angle of jaw;
20) oblique cut injury of size 10 x 1 x Bone deep behind right ear extending upto middle of right side of neck;
21) Oblique cut injury of size 24 cms. x 3-5-3 x cavety deep seen over lower part of front of neck 3 cms. below injury 10 extending from left mastoid process to right side of ear merging the previous injury on dissection the underlying soft tissue, muscles, vessels, nerves tracheal certulage were found out along the phase of injury."
iv) Thereafter, on the same day, at 11.00 pm, PW28 had enquired Manikandan, Senthilkumar, Rajappan and had seen the CCTV footage in the security room and seized the DVR, M.O.7, Power Adapter, M.O.8 and Mouse, M.O.9 from them under seizure mahazar, Ex.P17 and recorded the statements of the said witnesses. At the Race Course, he had enquired the witnesses Sekar, Dinesh, Selvi @ Kalaiselvi, Ramaraj, David, Murugesan, Mani, Srinivasan, Venkatesan, Adithyan, Jithu Brew, Ramesh, Subramani, Pandiarajan, Chandrasekar and recorded their statements. At 13.00 hours of that midnight, he had visited the Government Royapettah Hospital and https://www.mhc.tn.gov.in/judis 8 enquired Dr.Karthi, recorded his statement and obtained the extract of the Accident Register, Ex.P35. On 15.8.2013 at 2.00 am, he had arrested the appellant/accused at Asarkan Bus stop in the presence of the witnesses Pandian, Arunachalam and recorded his confession in the presence of the same witnesses. On the basis of the confession and the assurance of the appellant/accused to hand over the weapon and the blood stained clothes hidden by him, PW28 had taken him to his quarters at about 4.00 am on 15.8.2013 and recovered the knife, M.O.10, Bloodstained Black Colour Pant, M.O.11, Brown Colour full slack shirt M.O.12 under the mahazar, Ex.P19 in the presence of the same witnesses. The admitted portion of the confession statement is Ex.P36. On the same day at 5.15 am, after examining the appellant/accused, he had handed over the appellant in the police station and the appellant/accused was remanded to judicial custody on the same day. He had also sent the material objects to the court under Form 95. He had also issued requisition to the Doctor in charge at Royapettah Government Hospital for conducting post mortem on the dead body. The internal organs of the dead body were sent for examination to Forensic Sciences Department. PW28 had also enquired the Doctor Arun, who had conducted the postmortem and recorded his statement. He had also seized the blood stained saree https://www.mhc.tn.gov.in/judis 9 of the deceased, M.O.14, blood stained rose colour inskirt, M.O.15, White flower designed panties, M.O.16, Rose colour blouse, M.O.17, rose colour bra, M.O.18, Footwear (left side) M.O.19 under Form 91 and issued requisition to the court for sending them for examination by the Forensic Sciences Department. On 16.8.2013, PW28 had enquired Sreekumar, Damodharan, Ambrose at the Guindy Race Course and recorded their statements. On 17.8.2013, he had enquired Srinivasan, Amanullah Khan and recorded their statements.
On 12.9.2013, he had issued requisition to the court to record the statement of the witnesses Sekar, Dinesh, Selvi @ Kalaiselvi, Ramaraj, David, Murugesan, Mani, Srinivasan, Venkatesan, Adithyan, Jithubrew, Ramesh, Subramani, Pandiarajan, Chandrasekar and accordingly, except the witness Jithu Brew, all the other witnesses had been examined on 9.10.2013. PW28 had also enquired the Head Constable Kothandapani, Constable Sudhakar and recorded their statements. On 30.10.2013, he had handed over the case files to the Inspector of Police, PW29 for investigation.
v) The Inspector of Police, PW29, who took up the case on his return from medical leave, had conducted further investigation of the case. He had enquired PW1 and the witnesses Rajaram, Sridharan, Srinivasan, Bhavani, Pushparani, Thirunavukkarasu and one https://www.mhc.tn.gov.in/judis 10 Srinivasan, the Additional Secretary of Madras Race Club and recorded their statements. He had once again enquired the witnesses Venkatasan, Adithyan, Ramesh again and since they had repeated their earlier version, he had not recorded their statement. On completion of investigation, PW29 had filed final report against the appellant for offences under Sections 341, 302 and 506(ii) IPC.
4. The case was taken on file by the learned IX Metropolitan Magistrate, Saidapet, Chennai in P.R.C.No.50 of 2014 and after compliance with the requirements under Section 207 Cr.P.C., having found that the case is exclusively triable by Court of Sessions,he had committed the case to the Principal Judge, Chennai, which was, in turn made over to the Sessions Judge, Mahila Court (FAC), Mahalir Needhimandram, Chennai, assigning case number as S.C.No.244 of 2014.
5. The Trial Court, framed charges against the appellant for the offences under Sections 341, 302 and 506(ii) IPC and when the appellant/accused was questioned, he denied the charges and sought to be tried.
6. In order to prove its case, the prosecution has examined 29 witnesses as P.Ws.1 to 29 and marked 37 documents as Exs.P1 to P37 and 19 material objects as M.Os.1 to 19. When questioned under https://www.mhc.tn.gov.in/judis 11 Section 313 Cr.P.C, the appellant, though had pleaded not guilty, had not chosen to produce either oral or documentary evidence.
7. On completion of the trial, the Trial Court found the appellant/accused guilty and convicted and sentenced as indicated above. Assailing the above conviction and sentence the present appeal has been filed.
8. The submissions of the learned counsel for the appellant Mr.R.C.Paul Kanagaraj are as under:-
i) The case of the prosecution is bristled with material contradictions, embellishments and later improvements and several suspicious and unexplained loose ends have been left by the prosecution creating grave suspicion and doubts with regard to case as projected by the prosecution. The appellant, who is an innocent, has been falsely fixed in this case on mere suspicion and misconception and thereafter the entire case and records have been prepared to pretend that the appellant is the person, who has committed the murder.
ii) The Trial Court has failed to consider that the prosecution has not proved the motive part against the appellant/accused as there were about 500 employees aggrieved by the action initiated by the deceased and the appellant, being one among them, he has been https://www.mhc.tn.gov.in/judis 12 victimised.
iii) The Trial Court has failed to consider the fact that there are corrections in the complaint alleged to have been given by PW1 and hence, it could not be a true version of PW1.
iv) The Trial Court has erred in considering the CCTV footage when the same was not accompanied by the Certificate required under Section 65B of the Evidence Act and more particularly, when PW27, Pushparani, Scientific Officer in Anthropology Department, who has been examined by the prosecution with regard to the identity of the persons found in the video footage, had opined that she is unable to identify the persons found in the CCTV footage when compared with the photographs of the appellant/accused and that of the deceased given to her for comparison. The Trial Court has also erred in relying only on the selective footage from a particular CCTV camera given by the prosecution when there were several other CCTV cameras fixed in the campus.
v) The Trial Court has failed to consider the fact that grouping was not found with regard to the blood sample collected from the scene of occurrence.
vi) The Trial Court has failed to consider the fact that all the witnesses are interested witnesses working under the same https://www.mhc.tn.gov.in/judis 13 management and they have been attempted to be projected as ocular/ eye witnesses to the occurrence and further the non examination of the panchayatdars to the inquest, which was conducted immediately after the occurrence, creates a doubt in the prosecution case.
vii) The occurrence is alleged to have taken place at about 7.20 pm and the case of the prosecution is that the complaint had been lodged by PW1 at 8.00 pm itself as evidenced by PW28, the investigation officer and the inquest on the dead body at MRC was conducted by 10.45 pm and thereafter, the body was sent to mortuary, however, the evidence of PW1 falsifies the said fact as he admits during his cross examination that only after taking the body in an Ambulance to Government Royapettah Hospital and visiting the mortuary, he went and lodged the complaint and as a consequence, it also falsifies the preparation of rough sketch, observation mahazar and seizure mahazar, however, the Trial Court has ignored the said material contradiction which goes to the root of the case.
viii) The Trial Court has also ignored the very vital and material contradictions of the eyewitnesses with regard to the injuries when compared with the medical evidence as the eyewitnesses viz., P.Ws.1 to 12 have spoken in a parrot-like/stereotype version about having https://www.mhc.tn.gov.in/judis 14 seen the accused having cut the neck of the deceased, whereas, the post mortem report reveals that there were as many as 21 injuries all over the body of the deceased out of which, some were grievous in nature and PW21, the Doctor, who conducted the postmortem affirms it and he especially admits during his cross examination that the injuries on the body of the deceased would have been caused by more weapons than one. In a criminal case though ocular/oral evidence will prevail over the medical evidence, when the contradictions between medical evidence and ocular/oral evidence is so extreme and when the medical evidence completely rules out all probabilities of ocular/oral evidence being true, the ocular evidence is liable to be discredited and disbelieved.
ix) Failure on the part of the prosecution in not showing the weapon in question to the Doctor inviting his opinion as to whether the injury sustained by the deceased could be caused by such weapon or not, is an infirmity and a serious lapse on the part of the prosecution particularly, when the medical evidence totally improbablises their oral testimony in respect of the overt act of the appellant in inflicting the injuries on the deceased. Further the conduct of the witnesses as spoken by them after the incident defies https://www.mhc.tn.gov.in/judis 15 natural human conduct thereby making the very presence of the witnesses at the scene of occurrence highly doubtful.
x) The Trial Court has ignored the fact that P.Ws. 8, 10, 14 and 17 have spoken about the darkness and the power cut at the scene of occurrence at the relevant time, however, the alleged eyewitnesses viz., P.Ws.1 to 12 have identified the appellant/accused as murderer, which is highly unbelievable, especially, when it does not corroborate with the medical evidence, which gives a probability of assault by several persons on the deceased with more weapons than one.
xi) The Trial Court has failed to take into consideration the grave delay in the FIR reaching the court and the 161 Cr.P.C. statements recorded from the witnesses (Typewritten and without dates) and the inquest report having reached the court only along with the final report on 8.5.2014 after about seven months of the occurrence has led to several embellishments and improvements to suit the prosecution and falsely fix the appellant in the case. In such view of the above he would seek to extend benefit of doubt in favour of the appellant and seek for setting aside the judgment of conviction and sentence.
In support of his contentions, the learned counsel for the appellant would rely on the following decisions:-
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i) Samuthravel and others vs. State (2019) 2 LW Crl. 584
ii) Amar Singh vs. State (NCT of Delhi) (2020) 19 SCC 165
9. Per contra, Mr.Babu Muthumeeran, learned Additional Public Prosecutor would submit that the eyewitnesses especially, P.Ws.1 to 8 and 11 have cogently and categorically spoken about their presence in the scene of occurrence and having witnessed the occurrence. He would further submit that even if there is deficiency in the investigation, it cannot be a ground to discard the case of prosecution when it was authentic, credible and cogent. He would also submit that the complaint was registered at 8.00 pm on 14.8.2013 at 8.00 pm and it has reached the court at 5.00 am on 15.8.2013, however, no suggestion has been put to or any explanation has been called for from the investigating officer, PW28 with regard to the delay in the F.I.R reaching court and in such circumstances, the appellant cannot raise the ground of delay during the Appeal. He would submit that the prosecution has proved the motive of the appellant/accused to commit murder as he was aggrieved by the action initiated by the deceased in demoting him and directing him to evict the quarters in his occupation and thereby, the prosecution has proved its case beyond all reasonable doubts and pray that the appeal may be dismissed.
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10. In reply, the learned counsel for the appellant would submit that though no suggestion has been put to the investigation officer with regard to the delay in the complaint and the FIR reaching the court, the contradictions in the evidence of PW1 and PW28 with regard to the time of registration of the FIR, coupled with the fact that the place of occurrence, the respondent police station and the court are within a radius of 3 kilometers with each other, the delay in the FIR reaching the court assumes significance. He would further submit that in this case, all the 161 Statements are computer-typed and when it is the case of the prosecution that all the eyewitness were examined on the same night of the occurrence itself in the Race Course, such statements do not show any date of recording the same and all the important documents including 161 statements and the inquest report, which are stated to have been recorded on the same day, have reached the court only on 8.5.2014 at the time of filing the final report. Though the 161 statements, 164 statements and FIR do not form part of substantive evidence, the evidence of the witnesses before court is totally in contradiction to the statements recorded by the police, thereby creating a doubt with regard to the genesis of the case and the further proceedings.
11. Now ,what is to be seen is in this appeal is https://www.mhc.tn.gov.in/judis 18
1) Whether the prosecution has proved its case beyond all reasonable doubts? and
2) Whether the trial court has rightly and legally analysed and appreciated the evidence on record to find the appellant guilty of the charges?
12. The case of the prosecution is that the appellant, having been aggrieved and enraged over the action initiated by the deceased for demoting him from his services and later, dismissing him from service and directing him to evict the residential quarters allotted by the management, had murdered the deceased by cutting her neck with a knife from behind which had been witnessed by the Dabethar of the deceased, PW1 and on his call, other ocular witnesses had also gathered at the scene of occurrence and had prevented the appellant from assaulting the deceased, however, they could not succeed in their attempts to apprehend him as the appellant had threatened them with dire consequences and ran away from the scene of occurrence.
13. Whereas, it is the case of the defence that the witnesses particularly, PW1, who is stated to have given the complaint and the other witnesses viz., P.Ws. 2 to 12, who are stated to be ocular witnesses to the occurrence, could not have been present at the https://www.mhc.tn.gov.in/judis 19 scene of occurrence and witnessed it and they, being interested witnesses, have been falsely projected by the prosecution as ocular witnesses and that the incident could not have been committed in the manner as projected by the prosecution and the alleged registration of the case and further proceedings could not have been in the manner as claimed by the prosecution. The further case of the defence is that the non examination of the panchayatdars, who were present during the course of inquest on the body of the deceased creates a doubt in the prosecution case. It is the further case of the defence that the prosecution has not taken any initiative to prove the motive part and attribute it to the appellant as he is one among about 500 employees, who faced similar consequences at the instance of the deceased, upon their indulging into a wage dispute. It is also the further case of the defence that there was no sufficient lighting at the scene of occurrence at the relevant time as admitted by some prosecution witnesses themselves, however, the prosecution has come out with a highly unbelievable version that there were 12 eyewitnesses for the occurrence, who identified the appellant/accused.
14. Therefore, it is necessary to deal with the following aspects viz; Doubtfulness in the prosecution case/ Reliability of ocular/eye https://www.mhc.tn.gov.in/judis 20 witnesses to the occurrence, darkness and identity of accused in the scene of occurrence at the relevant time, the motive part, Registration of FIR, Arrest and recovery and the delay in the vital material documents reaching the court. The case also revolves around these aspects.
15. Doubtfulness/Reliability of EYEWITNESSES:- The prosecution has come out with the case that P.Ws.1 to 12 are eyewitnesses alleged to have witnessed the occurrence, among whom, PW1, the author of the complaint, Ex.P1 is a predominant one. PW1 had categorically spoken in his evidence that on the day of occurrence viz., on 14.8.2013, he had attended his duty as usual and he took the deceased to the venue of the Committee Meeting and thereafter, he returned to the office and at about 7.20 pm, he proceeded to the venue to ensure whether the Meeting was concluded and by then, the deceased coming in the opposite direction by talking over her mobile phone and she asked him to bring another phone available in the office as her phone was not working properly, but, when he took a few steps, he heard the alarming sound of the deceased and thereupon, he witnessed the deceased being cut on her neck by the appellant/accused and since his attempts to prevent the same failed, he called for assistance of his colleagues and thereupon, https://www.mhc.tn.gov.in/judis 21 PW2, PW8 and PW11 came to the spot and tried to prevent the attack and attempted to apprehend the appellant and since the appellant/accused had threatened them, they could not succeed in their attempt and after cutting the neck of the deceased, the appellant ran away from the scene of occurrence. He would also depose that during their attempts to prevent the assault, a G4 security staff had kicked the appellant/accused from behind. The specific evidence of PW1 is that he fell unconscious on seeing the occurrence and regained consciousness after sometime and thereafter, an Ambulance was arranged and that he took the victim to the Royapettah Hospital. He would also depose that the deceased died in the spot itself. His further evidence is that, thereafter, he went to the Guindy Police Station and gave a oral complaint and on the basis of his oral statement Ex P1 was made and he had signed in the complaint, Ex.P1 and he had read the same.
16. It is true that the prosecution has come out with many witnesses to prove its case and the other ocular witnesses, viz., P.Ws.2 to 12 corroborate the version of PW1. PW1 has deposed that he was near the deceased and he had seen the appellant holding the neck of the deceased and cutting her neck with a knife and that he raised alarm and attempted to save the deceased and apprehend the https://www.mhc.tn.gov.in/judis 22 appellant and the other witnesses have also merely reproduced the version of PW1 like a parrot and none of the eyewitnesses has spoken about any other injury caused to the deceased and the manner in which, it was caused, especially, when the medical evidence viz., Postmortem Report, Ex.P21 reveals that totally 21 injuries were found on the dead body and it has been affirmed by PW1, Dr.Arun, who had conducted the postmortem.
17. Immediately after the occurrence the prosecution has recorded the statements u/s 161 Cr.P.C from the eye witnesses P.Ws.1 to 12. Thereafter once again the prosecution has on 09-10- 2013 recorded the statements under Section 164 Cr.P.C from P.Ws.1 to 12, who are claimed to be ocular/ eye witnesses to the occurrence. In such statements recorded u/s 164 Cr.P.C before the Metropolitan Magistrate all of them have spoken about the appellant having caused the cut injury on the neck of the deceased. To be precise, excepting the minor variations/contradictions in the manner of causing the injury, all of them have pin pointedly stated that the appellant inflicted the cut injury only on the neck of the deceased. PW1 has stated that the appellant, caught old of the deceased from behind and cut her neck. PW2 had stated that the appellant was cutting the neck of the deceased. P.Ws. 3 to 7 and 9 have stated in their statements https://www.mhc.tn.gov.in/judis 23 that the deceased was lying down on her back and the deceased, by sitting on her, was cutting her neck. All of them have stated that despite their efforts to apprehend him the appellant had run away from the scene of occurrence. PW7 has stated that PW1 had punched the appellant from behind and a security had attempted to pull the appellant, however, the appellant had threatened them and escaped from the scene of occurrence. PW8 has stated that he had seen the deceased lying down with her neck cut and that a person was sitting near her with a knife and he had threatened others and later, he came to know that it is the appellant. PW10 has sated that he was not aware as to what had happened in the scene of occurrence and he came to know that the appellant had murdered the deceased. PW11 had stated that he had seen the appellant cutting the neck of the deceased and a security had attempted to pull him and the appellant had threatened him. PW12 had stated that the deceased was lying down and the appellant was bending towards her and cutting her neck.
18. Even later while deposing before the court during trial, all of them, in unison, have spoken about only one injury i.e., the appellant cutting the neck of the deceased with a knife. None of them has spoken about the appellant having caused any other injury https://www.mhc.tn.gov.in/judis 24 on the body of the deceased, whereas, the Doctor, PW21, who conducted the post mortem, has found 21 injuries out of which, the evidence of eyewitnesses tallies only with injury No.20 and the other grievous cut injuries inflicted on the face and stab injury on the upper part of the right side of the abdomen have not been accounted for, thereby creating a grave doubt as to whether the eyewitness could have seen the occurrence or not. Further it is the evidence of PW 21 that the injuries could have been caused by more than one knife.
19. Further, interestingly, when it is the case of the prosecution that there are 12 ocular/eye witnesses and many of them had tried to prevent the appellant assaulting the deceased, no one has attempted to get hold of the appellant/accused, he had simply ran away from the scene of occurrence just by threatening them with dire consequences and it is also strange to note that no cloth of any ocular witnesses has been recovered with any blood stains when it is their specific case that they tried to prevent the assault and later, they took the deceased in the ambulance to the Hospital.
20. Further, it is seen from the evidence of PW14, Chandrasekar, Field Officer of G4 Security Concern that on seeing the crowd and hearing the hue and cry at the scene of occurrence, he had rushed to the spot from the security room and came to know that the https://www.mhc.tn.gov.in/judis 25 deceased was murdered, however, he could not identify as to whether it is Aruna due to power cut and later, on arrival of the ambulance, he had identified the dead body as the deceased Aruna. PW20, Srinivasan, the Additional Secretary of Madras Race Club also speaks in his evidence that he came to know about the occurrence only through PW10, who had informed him that some unknown person had murdered the deceased Aruna.
21. P.W19, Srikumar, an official in Engineering Division of Madras Race Club and and PW20, Srinivasan, Additional Secretary of madras Race Club, being natural witnesses do not speak about the presence of other ocular witnesses in the scene of occurrence.
22. Further, with regard to the CCTV footage, PW27 Pushparani, the Scientific Officer in Anthropology Department speaks in her evidence that on comparison with the photographs provided to her, she could not identify the persons appearing in the videograph sent for examination.
23. Now coming to the contradictions found in the case of the prosecution with regard to ocular witnesses and medical evidence, as stated above, there are as many as 21 injuries found on the body of the deceased. It is the evidence of PW1, the Doctor, who conducted postmortem that the injuries could have been caused by more than https://www.mhc.tn.gov.in/judis 26 one weapon,whereas all the ocular witnesses in unison have spoken about having seen the appellant inflicting only one injury in the neck and no other injury has been accounted for.
24. It has been held by a Full Bench of the Apex Court in Amar Singh vs. State (NCT of Delhi) (2020) 19 SCC 165 that when the contradictions between the ocular evidence and the medical evidence is grave, and in a case where the conduct of eyewitness is unnatural and there are various other surrounding circumstances which make their presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumes significance and it is not liable to be ignored and a duty is cast on the prosecution to see that the alleged weapon of offence, if available, is shown to the medical expert and his opinion has to be invited as to whether all or any of the injuries on the victim could be caused with that weapon and the failure to do so may cause aberration of the course of justice.
25. The relevant portion of the decision of the Apex court in Amar Singh's case is extracted hereunder for ready reference:-
"29. In the facts and circumstances of the case, this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of https://www.mhc.tn.gov.in/judis 27 accepting eyewitness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eyewitness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to be ignored.
30. While emphasising the importance of eliciting the opinion of medical witness in such circumstances this Court in Kartarey v. State of U.P. [Kartarey v. State of U.P., (1976) 1 SCC 172 : 1975 SCC (Cri) 803] has observed as under : (SCC p. 177, para 26) “26. … We take this opportunity of emphasising the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any those injuries could be caused with one or more https://www.mhc.tn.gov.in/judis 28 than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration of the course of justice.”
31. The same has been again asserted by this Court in Ishwar Singh v. State of U.P. [Ishwar Singh v. State of U.P., (1976) 4 SCC 355 : 1976 SCC (Cri) 629] by observing as under : (SCC pp. 359 & 361, paras 5 & 8) “26. … It is the duty of the prosecution, and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and is opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration of the course of justice.” [Ed.: As observed in Kartarey https://www.mhc.tn.gov.in/judis 29 v. State of U.P., (1976) 1 SCC 172, p. 177, para
26 quoted in Ishwar Singh v. State of U.P., (1976) 4 SCC 355 at p. 361, para 8.] On the basis of the evidence on record it is difficult to say whether the injury to the deceased was caused by the knife with a broken tip which was ceased. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eyewitness “cannot be accepted at its face value”, as observed by this Court in Mitter Sen v. State of U.P. [Mitter Sen v. State of U.P., (1976) 1 SCC 723 : 1976 SCC (Cri) 190]
32. The conviction of the appellants rests on the oral testimony of PW 1 who was produced as eyewitness of the murder of the deceased. Both the learned Sessions Judge, as well as the High Court have placed reliance on the evidence of PW 1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eyewitness https://www.mhc.tn.gov.in/judis 30 is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the uncorroborated testimony of the sole eyewitness. Similar view has been taken by a three-Judge Bench of this Court in Selvaraj v. State of T.N. [Selvaraj v. State of T.N., (1976) 4 SCC 343 :
1976 SCC (Cri) 620] wherein on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature, concurrent findings of guilt recorded by the two courts below was set aside."
26. In the case on hand, as stated above though the medical witness speaks about 21 injuries found on the body of the deceased and the ocular witnesses stick on to only one injury, the prosecution has miserably failed to show the knife, M.O.10 to the medical witness inviting his opinion as to whether all or any of the injuries on the victim could be caused with that weapon when especially, all the witnesses, who are claimed to be eyewitnesses have spoken about only one injury and none of them had spoken about the remaining 20 injuries which were found on the body of the deceased. Further when PW1 has been shown the knife he has replied,that he doesn't https://www.mhc.tn.gov.in/judis 31 remember whether it was the weapon. In such case, the evidence of the eyewitnesses cannot be accepted at its face value.
27. It will also be useful to refer to the decision of a Division Bench of this court, where one of us (S.Vaidyanathan, J) is a party, in Samuthravel and others vs. State (2019) 2 LW Crl. 584, wherein it has been held as under:-
"18. The reference to these injuries becomes very important since many of the injuries that were found in the body of the deceased were not accounted for and it is not in line with the evidence of P.W.1 to P.W.4, who have spoken about the overt act of the accused persons. It is true that the witnesses need not state in graphic details about the number of injuries and it need not exactly tally with the injuries found in the postmortem report. However, this discrepancy should not be too vide and completely in mis-match with the ocular evidence.
19. At this stage, it will be relevant to take note of the following judgments of the Hon'ble Supreme Court in this regard.
In Khambam Raja Reddy and another vs. Public https://www.mhc.tn.gov.in/judis 32 Prosecutor, High Court of Andhra Pradesh, reported in 2007 (1) SCC (Cri) 431, wherein, the Hon'ble Supreme Court has held in paragraph No.19 as follows:
“ 19. The present case is an example of contradiction between the ocular evidence and the medical evidence, where the medical evidence is not borne out by the ocular evidence. In such a situation it was suggested on behalf of the appellants on the authority of a decision of this Court in the case of State of M.P. vs. Dharkole alias Govind Singh and Ors., reported in (2004) 13 SCC 308, where the medical evidence was at variance with the ocular evidence, the testimony of the eye- witness should be decided independently and if found trustworthy, the same could not be discarded merely because it is at variance with medical opinion. While there can be no difference of opinion with the principle explained in the aforesaid decision, the https://www.mhc.tn.gov.in/judis 33 application thereof will depend on whether the story as made out by the prosecution is trustworthy and can be related to the injuries suffered by the victim in the manner as sought to be projected. If the ocular testimony is such that it is not possible to relate the injuries with the circumstances in which they were said to have been inflicted, the court has the discretion not to accept the ocular evidence. The principle enunciated in Dharkole's case (supra) may be applied in an appropriate case, but each case has to be determined having regard to its own set of facts.” In State of Uttar Pradesh vs. Dinesh, reported in 2009 (3) SCC (Cri) 1484, wherein, the Hon'ble Supreme Court has held in paragraph No.14 as follows:
“14. Apart from that the medical evidence clearly rules out the manner of infliction of injuries as deposed. Though ocular testimony of witnesses had greater evidentiary value vis- https://www.mhc.tn.gov.in/judis 34 `-vis medical evidence, but when medical evidence totally improbablises the ocular testimony, that becomes a relevant factor in the process of evaluation of evidence. In the instant case the medical evidence totally improbablises the version regarding the manner of assault by both the accused persons as noted above.”
20. It is clear from the above judgments that the ocular testimony of the witnesses has a greater evidentiary value than the medical evidence.
However, if the variance/contradiction between the ocular evidence and the medical evidence, is too wide and it improbablises the ocular testimony, the same becomes a very relevant factor in the process of evaluation of evidence. In the facts of the present case, the medical evidence is not borne out by the ocular evidence and it is at variance with the ocular evidence and it is not possible to relate the injuries as spoken to by P.W.1 to P.W.4. The non-
explanation of many injuries found in the body of https://www.mhc.tn.gov.in/judis 35 the deceased, improbablises the version of the prosecution regarding the incident.
21. This gains significance since the presence of P.W.3 and P.W.4 in the scene of occurrence, is highly doubtful and the contradiction between the evidence of P.W.1 and P.W.2 and the fact that P.W.2 states that he and P.W.1 came out of the house after hearing the cries of the deceased, also makes their presence in the scene of occurrence highly doubtful. Therefore, the wide discrepancy between the ocular and medical evidence becomes very fatal to the case of the prosecution."
28. DARKNESS and IDENTITY of the accused:- It is the case of the prosecution that PW1 had seen the appellant/accused cutting the neck of the deceased on her raising alarm, his evidence is that he had called for assistance of his colleagues as he could not prevent the appellant and one among such colleagues is the Driver Dinesh, PW8. PW 8 had deposed that he could not see the face of the murderer as the scene of occurrence was very dark. It is further strengthened by the evidence of PW10, the Accounts Officer Subramani, who had deposed that he had seen two persons near https://www.mhc.tn.gov.in/judis 36 Umbrella Gate in the darkness and also by the evidence of PW14, Field Officer of G4 Security Company Chandrasekar, who had deposed that when he reached the scene of occurrence, he heard that the deceased Aruna was murdered, but, he could not identify as to whether it is the deceased Aruna since there was power cut by then and only when Ambulance had arrived there, he could identify the deceased.
29. In this regard, it is relevant to note that Pandian, PW17 who has been examined by the prosecution to speak about arrest of the appellant and recovery of material objects also speaks in his evidence that he had seen the appellant cutting the deceased in darkness which aspect has been corroborated by the testimony of PW2, Kalaiselvi @ Selvi, an ocular witness, who speaks in her evidence that it was drizzling and the scene of occurrence was dark by then.
30. MOTIVE:- It is the case of the prosecution that the appellant/accused has got strong motive to murder the victim Aruna as he was demoted and later dismissed from service and directed to evict the residential quarters whereas, a perusal of the materials available on record reveals that the appellant was suspended in March 2013 and the occurrence had taken place on 14.8.2013. It is https://www.mhc.tn.gov.in/judis 37 the case of the defence that the deceased had earned bad name among the employees of the Race Course by her stringent action against them in ousting them from employment for the disputes raised by them and in fact, there was an earlier attempt to attack her by somebody else, however, the prosecution has not initiated any steps to go into that aspect, rather, it had narrowed down the investigation merely pointing out the appellant/accused.
31. PW1, the author of the complaint, Ex.P1 also during his cross examination admits that he heard about the previous complaint lodged on the assault of the deceased. Further, PW19, Sreekumar, an officer in Engineering Section of Madras Race Club also admits in his cross examination that prior to the death, a complaint was lodged by the deceased with Guindy Police Station in respect of the assault made on her by a Union Leader.
32. PW20, Srinivasan the Additional Secretary of Madras Race Club admits in his cross examination that about 110 security staff had been removed from service at the instance of the deceased and proceedings had been initiated in the Labour Court by the maintenance staff, who would be about 500 in number and they had grudge over the deceased. He also admitted in his cross examination that he heard about a complaint lodged by the deceased one month https://www.mhc.tn.gov.in/judis 38 prior to her death that she had been assaulted by the Union Leader.
33. With regard to the previous attack by the Union Leader, PW28, the investigating officer also admits in his cross examination that the deceased had lodged a complaint with Law and Order Section on an attempt to murder her, however, he would depose that he does not know as to against whom, the complaint was made and he had not enquired anybody about the said complaint and no investigation was done with regard to that.
34. Doubts regarding the complaint/registration of FIR:-
When a line of inference is tried to be drawn on the basis of the complaint, Ex.P1, FIR Ex.P32, the evidence of ocular witnesses, P.Ws.1 to 12, especially that of PW1 and the evidence of PW28, the investigating officer, we find some material contradictions. According to PW28, the investigating officer, the complaint, Ex.P1 was received at 8.00 pm on 14.8.2013 and he proceeded to the spot at 20.30 hours on the same day and prepared observation mahazar and rough sketch and by 9.00 pm, he had recovered M.Os.2 to 6 and from 21.15 to 22.45 hours, he had conducted inquest on the dead body and send the dead body for postmortem.
35. In contra, the categorical evidence of PW1 is that after the assault he fell unconscious and later regained consciousness and after https://www.mhc.tn.gov.in/judis 39 that an Ambulance was called immediately and he along with others had taken the deceased to Government Royapettah Hospital and that the deceased died on the spot and only thereafter, he went to the Guindy Police Station and on his oral submission, the complaint, Ex.P1 was written by somebody else in the police station and he had signed it and read over the same. However, during his cross examination, PW1 would admit that only after seeing the dead body in the mortuary, he had lodged the complaint, Ex.P1. It is his further admission that he visited the Hospital between 9.00 pm and 10.00 pm. Such a material contradiction in the evidence of the author of the complaint, Ex.P1 shakes the very foundation of the case and also the credentials of the subsequent events viz., arrest, recovery and seizure of weapon, etc and thereby the case of the prosecution is hit by Section 154 and 162 of Cr.P.C.
36. ARREST AND RECOVERY:- The case of the prosecution is that on secret information, PW28 had arrested the appellant/accused at the Asarkan Bus stop in the presence of P.Ws.17 and 18 and on the voluntary confession of the appellant/accused, he had recovered M.O.10 knife, M.O.11 Trouser and M.O.12 shirt. However, it is seen that P.Ws.17 and 18, the witnesses for arrest and recovery had been treated hostile by the prosecution itself which, in turn, makes the https://www.mhc.tn.gov.in/judis 40 arrest and recovery itself unbelievable.
37. Of course, it is the case of the prosecution that the pant and shirt of the appellant, M.O.11 and M.O.12 was found to have stained with human blood of “A” group, which was the same “blood group” as that of the deceased. However, it is relevant to note that mere matching of blood group itself is not sufficient to convict the accused. In Sonvir @ Somvir vs. State of NCT of Delhi (2018) 8 SCC 24, it has been held as under:-
3. Alleged recovery of bloodstained shirt As per the prosecution, a bloodstained shirt was recovered at the instance of Sonvir alias Somvir (Appellant-Accused 2) from his room in the house of Teja Chaudhary, at the time of his arrest. The bloodstained shirt was sent for analysis to the FSL.
As per the FSL report (Ext. PW 33/A), the shirt allegedly recovered from Sonvir alias Somvir (Appellant-Accused 2) was found to be stained with human blood of “B” group, which was the same “blood group” as that of the deceased.
In para 20, the High Court held the recovery of the bloodstained shirt from Sonvir alias Somvir https://www.mhc.tn.gov.in/judis 41 (Appellant-Accused 2) to be incriminating against him, since the blood samples taken from the bedsheet at the scene of crime, were also found to be of the same blood group.
It is relevant to note that as per the FSL report (Ext. PW 33/A), both the bloodstained shirt allegedly recovered from Sonvir alias Somvir (Appellant- Accused 2) and the blood samples taken from the bedsheet at the scene of crime were found to be stained with human blood of “B” group.
The mere matching of the blood group of the blood samples taken from the bedsheet at the scene of crime, and the bloodstained shirt recovered from Sonvir alias Somvir (Appellant-Accused 2) cannot lead to the conclusion that the appellant had been involved in the commission of the crime.
On this issue, reliance can be placed on two decisions of this Court in Prakash v. State of Karnataka [Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642] , paras 41 and 45 and Debapriya Pal v. State of W.B. [Debapriya Pal https://www.mhc.tn.gov.in/judis 42 v. State of W.B., (2017) 11 SCC 31 : (2017) 3 SCC (Cri) 832] , para 8 wherein this Court while deciding cases based on circumstantial evidence had held that mere matching of the blood group cannot lead to the conclusion of the culpability of the accused, in the absence of a detailed serological comparison, since millions of people would have the same blood group.
In the present case, the prosecution has not proved that the room from where the bloodstained knife and bloodstained shirt were allegedly recovered, was in the exclusive possession of the appellant. The prosecution case is that the said room was in the house owned by one Teja Chaudhary. The prosecution did not examine the said Teja Chaudhary to prove that the said room was rented to Sonvir alias Somvir and/or was in the exclusive custody of the appellant.
Therefore, the recovery of the bloodstained shirt from Sonvir alias Somvir (Appellant-Accused 2) cannot be used as an incriminating piece of evidence."
https://www.mhc.tn.gov.in/judis 43
38. DELAY:- A perusal of the entire materials available on record would reveal that though the occurrence had taken place on 14.8.2013 at 7.30 pm and the complaint is stated to have been preferred at 8.00 pm and the printed FIR is stated to have been prepared immediately, the complaint, Ex.P1 and the printed FIR, Ex.P32 have reached the court only on 15.8.2013 at 5.00 am. When no suggestions had been put to the prosecution and no explanation had been sought for with regard to the delay, the defence is not entitled to raise the ground at the stage of appeal, however, taking into consideration the facts of the present case on hand, the doubt with regard to registration of the Complaint and the further fact that the distance between the place of occurrence,respondent police station and the court falling within a radius of 3 kilometers delay assumes significance and creates a dent in the case of the prosecution. However, with regard to the delay in sending the statement recorded under Section 161 Cr.P.C. and other documents, PW28 had been confronted during cross-examination and he had admitted to the delay and no satisfactory explanation had been brought forth by the prosecution. Further, the statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., of course, with a stereotyped version of the witnesses and all the material https://www.mhc.tn.gov.in/judis 44 records including the inquest report, Ex.P34 have reached the court only on 8.5.2014 at the time of filing the final report after an enormous delay which has to be construed as an additional dent in the case of the prosecution. Further, the dates of recording the Statements under Section 161 Cr.P.C. from the eyewitnesses is also not found.
39. A Division Bench of this court in Ramachandran vs. State (2012) 3) MWN (Cr.) 266 (DB), has held as under:-
"26. There is yet another infirmity in this case. According to prosecution, the occurrence was on 5.5.2008, at about 12.30 a.m. The FIR was recorded by PW12-Jayaraman, Sub-Inspector of Police, at the Govt. Hospital, Tirupur at about 2.45 a.m. and it was registered by him at the Tirupur North Police Station at about 3.45 a.m. The FIR has been handed over to Judicial Magistrate No. I, Tirupur, on the next day, at about 10 a.m. From the cross-examination of PW12, it is seen that the said Court is situate within 250 yards from the Police Station. So, the FIR has reached after 6 hours of delay. As to this, PW12 was also cross-examined by the defence. It was also https://www.mhc.tn.gov.in/judis 45 suggested to him that the FIR was not registered at the time and place as stated by him. Absolutely, there was no explanation from him as to the said delay.
27. Right from the moment FIR was registered under Section 154, Cr.P.C. the FIR, the documents seized, the case-properties recovered and statement of witnesses recorded under Section 161, Cr.P.C. must reach the concerned Court with least delay. As already stated it is to prevent embellishment of true version as to the occurrence and false implication of innocent persons. Because, every delay in submitting these documents to the Court will give much scope and chance for interpolation, story telling and any unreasonable and unexplained delay on this account will affect the credibility and the quality of the evidence of prosecution witnesses, more particularly eyewitnesses and key-witnesses in a case.
28. In the facts and circumstances of this case, the said unexplained delay in FIR reaching the Court assumes signal importance since we have held that https://www.mhc.tn.gov.in/judis 46 the FIR in this case is not free from doubt. This delay goes to the root of the matter. It shakes the version of the prosecution case embodied in the FIR."
40. In Kavitha and others vs. State (2012) SCC OnLine Mad. 2804, it has been held as under:-
"27. Section 161(1), Cr.P.C. empowers a Police Officer to examine orally any person, who is acquainted with the facts and circumstances of the case and as per Section 161 (3), Cr.P.C. when he reduces it into writing he must make a true record of it. He is duty bound to send those statements to the Court with least delay. It is to ensure the genuineness of the statement recorded by him. It is also intended to avoid procuring of false evidence to implicate innocent persons.
28. But, by delayed submissions of these statements to Court alone, neither the investigation be flawed nor the testimony of the authors of the statements be dubbed as clouded with mystery unless such delay tells upon the acceptability of the veracity of such witnesses. If a witness speaks about an https://www.mhc.tn.gov.in/judis 47 important aspect in a case, such as motive or reason for committing the crime, when especially the case is based on circumstantial evidence, the statement of such witnesses recorded under Section 161, Cr.P.C. if submitted to the Court with least possible delay will ensure fairness in investigation and also will give authenticity to the testimony of the witnesses.
29. Now, in the case before us, since PW7 is a witness for the motive attributed, she becomes a key- witness. In this case, her statement has been recorded by PW18 on the next day of occurrence, namely, on 24.9.2008. But, her statement was submitted to the Court only on 25.6.2009 along with the Final Report. So, according to prosecution, till such time it was tied with the Case Diary. The defence also cross-examined PW18 on the belated submission of her statement to Court and it was also suggested to him that since she is a subsequent cooked-up witness, her statement has been submitted to the Court belatedly.
30. In the facts and circumstances, we cannot https://www.mhc.tn.gov.in/judis 48 dismiss the arguments of the learned Counsel for the Appellants that no reliance could be placed on the evidence of PW7 as devoid of any merit."
41. When no reasonable explanation has been given by the prosecution for the delay in sending the 161 Statements and the other connected records to the Court, there is every possibility of embellishments and improvements thereby doubting the very presence of the witnesses and their examinations on the particular day. As stated above, in this case, none of the 161 Statements contain the date on which they were recorded.
42. While analysing the evidence in totality and the reasons thereto, we are of the opinion that there are several loose ends in the prosecution case creating grave doubts with regard to involvement of the appellant in the offence.
43. Presumption of one's innocence is his basic human right. It is also one of the fundamental principles of jurisprudence that an accused is presumed to be innocent till he is proved to be guilty beyond reasonable doubt by letting in legal evidence. It is well settled that suspicion, however strong, can never take the place of proof. There is no doubt, https://www.mhc.tn.gov.in/judis 49 a long distance between the accused "may have committed the offence" and "must have committed the offence", which must be traversed by the prosecution by adducing reliable and cogent evidence (See: Narendra Singh vs. State of Madhyapradesh (2004) 10 SCC 699 and Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra (2005) 5 SCC 294).
44. In this case, the materials on record portrays huge suspicion and the evidence adduced is full of material contradictions and in such circumstances, it is not safe to fasten the culpability on the appellant to the crime. The investigating agency had ignored its paramount duty of bringing home guilt of the accused with appropriate evidence as admissible in law beyond doubt. We are of the opinion that the investigation, filing of final report and the trial had been conducted in a slipshod manner. No doubt, it is a case where a lady has been done to death in a gruesome manner in her place of employment. The prosecution is bound to prove its case beyond reasonable doubts and the accused cannot be convicted based on mere suspicion,presumptions and assumptions.
45. It is apposite to refer to a judgment of the Apex Court in Asish Batham vs. State of Madhyapradesh (2002) 7 SCC 317 https://www.mhc.tn.gov.in/judis 50 wherein it has been held as under:-
"8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between “may be true” and “must be true” and this basic and golden rule only helps to maintain the vital distinction between “conjectures” and “sure conclusions” to be arrived at on the https://www.mhc.tn.gov.in/judis 51 touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
46. The above view has been reiterated by the Apex Court in a later decision in Rathinam vs. State of Tamil Nadu (2011) 11 SCC 140.
47. Based on the above reasoning, while closing our discussion on the evidence adduced, we come to an irresistible conclusion that the prosecution has not proved its case beyond all reasonable doubts and in such circumstances, it would not be safe to convict the appellant and he is entitled to benefit of doubt.
For want of proof in this case, truth fails to triumph.
48. In light of the above discussion, we are of the view that it would not be safe to confirm the conviction and sentence of the appellant/accused rendered by the Trial Court. Accordingly, the judgment of conviction and sentence rendered by the Sessions Judge, Mahila Court (FAC), Mahalir Needhimandram, Chennai made in S.C.No.244 of 2014 dated 27.10.2017 is set aside and the appellant is acquitted of all the charges. The appellant is set at liberty. Bail bond executed, if any, shall stand cancelled. Fine amount paid, if https://www.mhc.tn.gov.in/judis 52 any, shall be refunded to the appellant.
(S.V.N.,J.) (A.D.J.C.,J.) 22.8.2022.
Index: Yes/No. Internet: Yes/No. ssk.
To
1. Sessions Judge, Mahila Court (FAC), Mahalir Needhimandram, Chennai.
2. The Inspector of Police, J-3, Guindy Police Station, Chennai.
3. The Superintendent, Central Prison, Puzhal.
4. The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis 53 S.VAIDYANATHAN, J.
and A.D.JAGADISH CHANDIRA, J.
ssk.
P.D. JUDGMENT IN Criminal Appeal No.790 of 2017 Delivered on 22.8.2022.
https://www.mhc.tn.gov.in/judis