Madras High Court
K.Madhivanan vs The Inspector Of Police on 12 June, 2017
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 25.02.2020
Date of Judgment 30.06.2020
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A(MD)No.178 of 2017
K.Madhivanan : Appellant/Accused
Vs.
The Inspector of Police,
Ganesh Nagar Police Station,
Pudukottai. : Respondent /Complainant
Prayer: Criminal Appeal filed under section 374 of the
Criminal Procedure Code, against the judgment of the Sessions
Judge, Mahila Court, Pudukottai, passed in S.C No.35 of 2016,
dated 12.06.2017.
For Appellant : Mr.N.Ananthapadmanabhan
For Respondent : Mr.V.Neelakandan
Additional Public Prosecutor
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal is directed against the judgment of the Sessions Judge, Mahila Court, Pudukottai, passed in S.C No.35 of 2016, dated 12.06.2017.
2.The case of the prosecution is that the deceased Bhuvaneswari was a teacher working the same school where the accused was the Headmaster and due to harassment by the accused, the deceased committed suicide on 07.05.2015 at her parent's house. The Inspector of Police attached to Ganesh Nagar Police Station has filed a final report against the accused examining the witnesses.
3.The trial court, after careful perusal of the entire materials available on record, convicted the accused for the offence under section 354-A(2) IPC and sentenced him to undergo two years RI and to pay a fine of Rs.2,000/-, in default 3 months RI and also for the offence under section 4B(2)of the Tamil Nadu Prohibition of Harassment of Women Act, 1998, sentenced him to undergo 5 years RI and to pay a fine of Rs.50,000/-, in default to undergo one year RI and directed the sentences to run http://www.judis.nic.in 3 concurrently. Aggrieved by the judgment of the trial court, the appellant/accused is before this court.
4.Heard both sides and perused the materials available on record.
5.The first contention raised on the side of the appellant/accused is that PW1 to PW3 and PW5 to PW8 cited as witnesses to speak about the sexual harassment by the accused prior to the death of the deceased and there are lot of contradictions in the evidence of PW1 to PW3 and PW5 to PW8 and the competent person to speak about the occurrence is the co- workers of the deceased. But they were not examined and hence, it is fatal to the prosecution.
6.PW1 is the father of the deceased. PW2 is the mother of the deceased. PW3 is the husband of the deceased. The case of the prosecution is that prior to the occurrence, the accused frequently subjected the deceased to sexual torture and due to it, the deceased committed suicide. To prove that the accused sexually harassed the deceased, PW1 to PW3 and PW5 to PW8 were examined. http://www.judis.nic.in 4
7.PW1 deposed that one year after the marriage of his daughter, she received phone calls, but his daughter did not disclose about the calls and one day, he saw that his daughter was crying after returning from her duty and when he asked her, for that her daughter replied that she had stomach pain and only on 06.05.2015, he came to understand the sexual harassment by the accused. From the evidence of PW1, it reveals that prior to 06.05.2015, he did not know the alleged sexual harassment by the accused.
8.PW2 deposed that on 06.05.2015 at 10.30 am, her daughter received a phone call and her daughter was crying, while speaking in the phone and she got the phone from her daughter and she came to understand that the accused only made a call to her daughter and she asked the accused why her daughter was like this and for that, the accused asked her to give the phone to her daughter and then, she gave the phone to her daughter and then she went away. PW2 has not stated that her daughter told her that the accused sexually harassed her prior to 06.05.2015. Hence, it is held that she had also no knowledge about the alleged sexual harassment by the accused prior to 06.05.2015. http://www.judis.nic.in 5
9.PW3 the husband of the deceased. He deposed that during the month of April 2015, he saw his wife in a depression mood and when he asked her, for that, she replied that the accused sexually harassed her. PW5 deposed that one day prior to the death of the deceased, she saw the deceased was crying and when she asked why she was crying, for that, the deceased replied that a teacher gave her torture and for that, she told her that the matter will be settled amicably and due to the torture by the accused, she committed suicide. PW5 has not stated during her evidence that the deceased stated that only the accused gave her sexual harassment. It is to be noted that PW5 deposed that she came to understand that one teacher harassed the deceased. During her chief examination, PW5 has stated that she heard from the deceased that a teacher harassed her. But during her cross examination stated that she daily goes to her work and hence, she did not enquire about the torture. It is to be noted that PW5 is only a hearsay witness. Hence, much importance cannot be given to the evidence of PW5.
10.PW6 is the friend of the deceased. PW6 deposed that one month prior to the death of the deceased, she saw the deceased http://www.judis.nic.in 6 when she was returning from her duty and she saw the deceased crying and she asked the deceased why she was crying and for that, the deceased replied that “jiyik Mrphpah; kjpthzd; ,q;nf th mq;nf th vd;W brhy;yp yPt; ehl;fspYk; vd;id miHf;fpwhh;”and further, she came to understand from the deceased that the accused threatened her and she narrated the torture of the accused to her family members and she heard that the deceased poured kerosine and died. PW6 has not stated that the deceased told her that the accused sexually tortured her and she only deposed that the deceased told her that the accused said ,q;nf th mq;nf th. On careful perusal of the above evidence, it does not amount to sexual harassment. PW6 is the friend of the deceased. Hence, she is the interested witness and therefore, her evidence is not at all acceptable.
11.PW7 deposed that four weeks prior to the death of the deceased, she saw that the deceased was crying and when she asked why she was crying, for that, the deceased replied that kjpthzd; rhh; mq;nf th ,q;nf th vd;W lhh;r;rh; bfhLg;gjhf brhy;Ythh; and further, she told her that the accused called her to the school with bad intention and further, the http://www.judis.nic.in 7 deceased told her that when she told the torture by the accused, he will dismiss her from the service and further, she heard that the deceased died by way of pouring kerosene and set fire. But PW7 during her cross examination stated as follows:-
“3 khjj;jpw;F Kd;g[ g[tnd];thp
mGJ bfhz;L te;jij ghh;j;jJ nghy;
mjw;F Kd;g[ mt;thW ehd; ghh;f;ftpy;iy.
g[tnd];thp xU ];Tl;o thq;fp mjpy; jhd;
brd;W tUthh;. g[tnd];thp
mtuJ ];Tl;oia ngh]; efhpy; itj;Jtpl;L
vjphpa[ld; brd;W tpLthh.; vjphpa[ld; mt;thW
bry;tJ jtwpy;iyah vd;W g[tnd];thpaplk;
ehd; nfl;ftpy;iy. ,jidg; gw;wp
g[tnd];thpapd; fzth; tPuhr;rhkpaplk;
brhy;ytpy;iy
..vjphp g[tnd];thp tPl;ow;F
te;jpUe;jij ehd; ghh;f;ftpy;iy. ehd;
g[tnd];thp ntiy ghh;f;Fk;
gs;spf;Tlj;jpw;F brd;W mq;F vd;d ele;jJ vd;W bjhpe;J bfhs;stpy;iy. vd;bdd;d njjpfspy; vjphp g[tnd];thpia Tl;of;
bfhz;L te;Jtpl;lhh; vd;W Fwpg;gpl;L
vd;dhy; brhy;y ,ayhJ. fPuD}h;
ePjpkd;wj;jpy; thf;FK:yk;
bfhLj;jnghJ ,e;j tp\aq;fis ehd;
brhd;ndd;. tPuhr;rhkp FLk;gj;jpdh;
vq;fSf;F beUq;fpa gHf;fk; ,wg;gjw;F Kd;g[ vjphp g[tnd];thpf;F lhh;r;rh; bfhLj;jJ gw;wp http://www.judis.nic.in 8 ehDk; g[tnd];thpa[k; ntW ahhplK;
brhy;ytpy;iy. mth;fs; tPl;oy; ,J rk;ge;jkhf gpur;rpid ,Ue;jjh vd;gJ gw;wp vdf;F bjhpahJ.”
12.From the above cross examination, it reveals that prior to the occurrence, the deceased used to park her scooty at Bose Nagar and when, she went along with the accused, it is not possible to go in the vehicle of the accused when she was sexually harassed by him. Hence, from the evidence of PW7, it reveals that the deceased went along with the accused as a friend of her. Hence, from the evidence of PW7, it does not reveal any harassment by the accused. In this case, PW1 and PW2 stated that they came to understand the tortured by the accused. But PW7 during her cross examination stated that she or the deceased has not stated the torture given by the accused to others. Hence, it creates doubt about the evidence of PW7.
13.PW8 deposed that prior to one month, he and the deceased were in the bus stop, at that time, the accused came and asked the deceased to come with him and for that, she replied and the accused said “ntW ahh; tz;oapy; te;J Tg;gpl;lhYk; nghthah” and the accused went away and then, he asked the http://www.judis.nic.in 9 deceased, for that, the deceased replied that “vjphp jd;id jg;ghd tHpapy; ngRtjhft[k; ntiy ghh;f;fhknyna ,Uf;fyhk; vd;W epidg;gjhf vd;dplk; Twpdhh;”and he disclosed the above fact before the Keeranoor Judicial Magistrate.
14.It is stated on the side of the prosecution that the deceased went to the school only in her two wheeler. Further, PW8 admitted that the accused constructed a compound wall for the school building and prior to that, there was no compound wall and the persons went through the school to reach the other side and further, PW8 had his house on the rear side of the school. PW8 admitted during his cross examination that only after the accused became the headmaster, he constructed the compound wall. Hence, the argument put forth on the side of the accused stating that due to the construction of compound wall by the accused, PW8 had enmity with the accused and gave evidence against the accused is acceptable.
15.It is seen that the the deceased is an educated woman and when the accused sexually harassed her, there are several ways to give complaint against the accused. But she has not given any http://www.judis.nic.in 10 complaint against the accused. The competent person to speak about the sexual harassment by the accused is the co-workers of the deceased. But none of the co-workers were was examined on the side of the prosecution to prove the sexual harassment by the accused. Further, there are lot of contradictions in the evidence of PW1 to PW3 and PW5 to PW8 in respect of the alleged sexual harassment prior to the death of the deceased. Hence, the sexual harassment given by the accused towards the deceased prior to her death was not proved.
16.The next contention raised on the side of the appellant/accused is that only there had been any harassment as suggested by the prosecution in the subsequent investigation made after 13.05.2015 and such harassment was within the knowledge of the father, who lodged the complaint, nothing would have prevented him from mentioning the same in his complaint, that was lodged at 8 AM on 07.05.2015 and by the harassment on the part of the accused appears to be a complete afterthought only after a case was registered against the prosecution witness on 08.05.2015 and the theory framed after the subsequent disclosure of the fact about the harassment on the part of the accused speak about the telephone conversation between the accused and the deceased on http://www.judis.nic.in 11 the day previous to the day of occurrence and the final report categorically revolves around that incident as the material cause for the death of the deceased, but the prosecution failed to procure the necessary evidence to prove that there was some conversation between the accused herein and the deceased, as a result of which the deceased felt harassed and decided to end her life and being unable to procure the material evidence particularly when it is readily available with the service providers, the prosecution has chosen the witnesses, who will support the new version without any hesitation and on the prosecution side, it was not mentioned how soon or how far, such incident had taken place from the time of her death and such fact was not even disclosed by the deceased to her husband and when it is common sense that no one will venture to tease a woman, particularly a colleague at a bus stop in the presence of a stranger, this evidence is even more artificial as there is clear evidence that the deceased had a two wheeler and she used to travel in the same ever-since she had joined duty in the school and PW1 in his complaint did not disclose about the fact of harassment and subsequent afterthought can be given weightage and hence, the question of suicide does not arise and prays that the appellant/accused is entitled to acquittal. http://www.judis.nic.in 12
17.PW1 gave Ex.P1 complaint in respect of the alleged occurrence. PW1 in his complaint stated that the deceased had stomach pain for a long time and due to it, she committed suicide. But during his evidence, PW1 stated that his daughter and the accused were working in the same school and frequently, there was a phone call to his daughter and when he enquired it on 06.05.2015, for that, his daughter replied that frequently the accused gave sexual torture to her and the accused threatened her to dismiss his daughter from the service when she informed his activities to his superior officials and then, he got the phone from his daughter and through the phone, he warned the accused and on 07.05.2015 at 4.30 am, when his daughter came to his house, he asked why she came to his house and for that, she replied that for taking milk, she came and then, his wife went to the shop and he went to the bathroom, at that time, his daughter went to the back side of his house and poured kerosine and set fire and subsequently, her daughter died on the spot.
18.It is admitted by PW1 that he is a driver. As per his evidence, his daughter only narrated him about the sexual torture. Ex.P1 is the earliest document. But PW1 has not narrated in Ex.P1 http://www.judis.nic.in 13 about the sexual torture given by the accused. But he simply stated that his daughter had stomach pain and due to it, she committed suicide. But during his evidence, PW1 stated that “mrpq;fkhfg; ngRthh;fs; vd;gjhy; vdJ kfspd; bgaiu bfLf;f ntz;lhk; vd;gjw;fhf g[fhhpy; tapw;W typ vd;W brhy;yp cs;nsd;”and due to it, he has not mentioned the real occurrence in the complaint. PW1, as per the prosecution version, had really known the occurrence, why it was not stated by PW1 in his complaint. No explanation was given on the side of the prosecution for the same. It is not the case of the prosecution that due to the threat by the accused, he gave the complaint as stated in the complaint. PW1 in his complaint did not disclose about the fact of harassment by the accused and hence, it is held that the evidence of PW1 cannot be given weightage.
19.The next contention raised on the side of the accused is that there was no evidence for the sexual torture to the deceased by the accused soon before her death and hence, the offence under section 4B(2) of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 is not made out.
http://www.judis.nic.in 14
20.PW1 in his evidence stated that after one year of the marriage of his daughter, there was a phone call for his daughter in the night and there were also phone calls to his daughter during her holidays and sometimes, he saw that his daughter returned from the school in a worried manner and on 06.05.2015 at 6.00 pm, there was a phone call for his daughter and his daughter told him that the accused gave sexual torture to her and threatened her to dismiss her from the service, when she intimated his activities to others and then, he got the phone from his daughter and warned the accused and on 07.05.2015, when his daughter came to his house, he went to the bathroom and at that time, his daughter went to the back side of his house and poured kerosine and set fire and after hearing the noise of his daughter, he came out and saw that his daughter found with fire and he went and saw his daughter found dead.
21.PW1 during his cross examination in one place stated that he saw her daughter came with fire, when he was in the bathroom. But during his cross examination, in another place, he has stated as follows:-
http://www.judis.nic.in 15 “vjph; tPl;L jpz;izapy; jhd; vdJ kfis ehd; ghh;j;njd;. mg;nghJ mth; caph;
nghd epiyapy; ,Ue;jhh;. gf;fj;J tPl;oy;
FoapUe;j bry;tp mq;F ,Ue;jhh.; g[tdh vd;w bgz;Zk; mq;fpUe;jhh.; mthplk; nfl;l nghJ jhd; vdJ kfs; vd;W Twpdhh;.”
22.On careful perusal of the above evidence, it reveals that he has not seen that his daughter crossed with fire, when he was in the bathroom and he identified the body only through his neighbours Selvi and Bhuvana and he saw his daughter only in death stage. Further, PW1 has not stated that there was kerosine, which was kept in the back side of his house. No explanation was given on the side of the prosecution how the deceased got the kerosene. Hence, the evidence of PW1 stating that he saw his daughter crossing with fire, when he was in the bathroom is not at all acceptable.
23.Further, PW1 stated during his evidence that on 06.05.2015, her daughter received a phone call from the accused and his daughter told him that the accused sexually tortured her and then, he got the phone from his daughter and warned the accused and the accused agreed to stop it. As per the prosecution http://www.judis.nic.in 16 case, on 06.05.2015, the accused gave sexual torture to the deceased and due to it, in the next day, she committed suicide. To prove that on 06.05.2015, the accused gave sexual torture to the daughter of PW1 through phone, no call details were obtained by the Investigating Officer. When the call details are produced, it is very easy to find out, whether the accused gave sexual torture to the deceased on 06.05.2015. Further, the cell phones of the deceased and the accused were not recovered. No explanation was given for the non-recovery of the above cell phones. They are the important material objects. The non-recovery of the above material objects creates doubt about the prosecution case.
24.In this case, the first Investigating Officer was examined as PW16. At this juncture, it is necessary to refer the cross examination of PW15 and PW16. PW15 during his cross examination stated as follows:-
“,we;j egh; kw;Wk; vjphpapd;
bry;nghd;fis ,t;tHf;fpy; ifg;gw;wtpy;iy.
mth;fs; ,Uth;fSf;fpilna eilbgw;w
ciuahly;fisg; bghWj;J fhy; buf;fhh;l;];
vJt[k; rk;ge;jg;gl;l bry;nghd;
http://www.judis.nic.in
17
fk;bgdpapypUe;J tprhhpj;J bjhpe;J
bfhs;stpy;iy.”
25.PW16 during his cross examination stated as follows:-
“,t;tHf;fpy; bry;nghd; vija[k; ehd;
ifg;gw;wtpy;iy. vjphpf;Fk; ,we;J
nghdtUf;Fk; ,ilna eilbgw;w bry;nghd;
ciuahly;fs; gw;wp tpguq;fis mwptjw;F
rk;ge;jg;gl;l bry;nghd; epWtdq;fis ehd;
tprhhpj;J bjhpe;J bfhs;stpy;iy.
26.PW2 the mother of the deceased also deposed that on 06.05.2015 at 10.30 to 11.00 am, her daughter received a phone call and her daughter cried, when she spoke to other side, she get the phone from her daughter and in the opposite side, the accused was speaking and she asked why her daughter was like this and for that, the accused asked her to give the phone to her daughter and went away. PW1 has not stated that on the same day at 11.00 am, the accused made a call to his daughter and his wife also spoke to the accused. On the side of the prosecution, it is not stated that on 06.05.2015 at 5 to 6 and 10.30 to 11.00 am, the deceased received a phone call from the accused. There are contradictions between their evidence. PW3 the husband of the deceased has deposed that http://www.judis.nic.in 18 during the month of April 2015, his wife was in a depression mood and he asked her, for that, she replied that the accused subjected to torture her and further, he heard from PW1 that in the morning, the deceased received a phone call from the accused and he warned the accused. PW1 and PW2 in respect of the receipt of the alleged phone calls from the accused, except PW1 and PW2, nobody has spoken about any direct knowledge about the phone calls. Further, in this case, the cell phones of the deceased and the accused were not recovered. No explanation was given for the non-recovery of the above phones. The cell phones of the deceased and the accused are the material objects. But on the side of the prosecution, no steps were taken to recover the above cell phones. No steps were taken to recover the call details of the phone of the accused and the deceased. When the call details of the above phones were collected, it reveals the mobile connection number used by the deceased, how many phone calls did she received from the accused, what is the frequency in which calls were received, whether the calls were not sided or reciprocal, whether there was any call received by the deceased on 06.05.2015 as stated by PW1 and PW2, whether the deceased received only one call or two calls on 06.05.2015 and whether it was an incoming call or outgoing call and who is the http://www.judis.nic.in 19 caller. But PW15 has not taken any steps to collect the call details.
The case is based on the phone conversation between the deceased and the accused. Hence, it is held that the non-recovery of the phones of the deceased and the accused and the call details in respect of the above phones is fatal to the prosecution.
27.For the offence under section 4(B) of the Tamil Nadu Prohibition of Harassment of Women Act, 1998, it is shown that soon before the death, the deceased was subjected to harassment by any person or in that respect of her, the offence under section 294, 354 and 509 IPC was committed, such suicide shall be called as “harassment suicide” and such person shall be deemed to have abetted the suicide. At this juncture, it is necessary to refer section 4B of the Tamil Nadu Harassment Act 1998, which would run thus:-
“4-B.Harassment suicide:-(1)If any woman commits suicide and it is shown that soon before her death, she was subjected to harassment by any person or that in respect of her an offence under section 294, 354 or 509 of the Indian Penal Code (Central Act XLV of 1860) was committed, such suicide shall be called the harassment suicide and such person shall be deemed to have abetted http://www.judis.nic.in 20 the suicide.
(2)Notwithstanding anything contained in Section 4, whoever abets harassment suicide shall be punished with imprisonment of either description for a term which may extend to ten years and with fine which shall not be less than fifty thousand rupees.
28.In this case, it is not proved on the side of the prosecution that prior to the death of the deceased, there was sexual harassment by the accused.
29.The further contention raised on the side of the appellant/accused is that inquest was not conducted in the place of occurrence, but the inquest was conducted in the Government Hospital and in the inquest report, it was stated that the inquest conducted only at 12.00 noon on 07.05.2015, but the Doctor, who conducted postmortem has stated that he conducted the postmortem at 11.00 am and hence, the evidence of PW11, the Doctor, who conducted the postmortem, even prior to the receipt of the inquest report. But there are contradictions between the inquest report and the time of conduct of the postmortem and the http://www.judis.nic.in 21 inquest was not conducted in the place of occurrence and hence, it is fatal to the prosecution.
30.In this case, in the observation mahazar, it is stated that the road was the place of occurrence. But on perusal of the Ex.P11, it is found that the inquest was conducted in the mortuary of the Government Hospital. After completion of the inquest, the Investigating Officer will give requisition to the Medical Officer to conduct postmortem. As per Ex.P11, the inquest was completed on 07.05.2015 at 12.00 noon. PW11 is the Doctor, who conducted the postmortem, deposed that he conducted the postmortem on 07.05.2015 at 11.00 am. In general, postmortem will be commenced only after the receipt of the inquest report. But in this case, postmortem was conducted at 11.00 am. Further, in this case, FIR was sent to the Tahsildhar. But the Tahsildar has no power to conduct the investigation and it was admitted by PW11 during his cross examination. Hence, it creates doubt about the inquest report and hence, it is held that it is fatal to the prosecution case.
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31.The next contention raised on the side of the appellant/accused is that the evidence of PW1 is not corroborated with the evidence of the Doctor, who conducted postmortem and prays that the appellant/accused is entitled to acquittal.
32.PW1 during his evidence stated that when he had gone to the bathroom, at that time, the deceased poured kerosene on herself and set fire and the neighbourhood raised noise and he came out of the bathroom and he saw the deceased in flames had fallen in front of the temple opposite to his house. But during his cross examination, PW1 stated that the occurrence happened two minutes, after he entered into the bathroom and he saw his daughter crossing the bathroom with flames engulfed her and he immediately put off the fire by using a gunny bag and when he put off the fire, he found that his daughter was dead.
33.The learned counsel appearing for the appellant/accused submitted that PW1 in his evidence stated that he saw that the deceased was running across the bathroom towards the opposite of his house and he followed the deceased when she was struggling, but when he reached the place, she was totally http://www.judis.nic.in 23 burnt and the death was not believable because the medical evidence in this regard is that the deceased alive, when she was set to fire the wind pipe and lungs will have the soot particles otherwise called the dust created by flame within the lings or the wind pipe of the deceased and PW11's evidence was very categorical that when a person is wearing inner war like petticoat and brazier, there is no possibility of 100% burn on the body and PW11 deposed that there is every possibility that the deceased would have been set on fire without any clothes and hence, the medical evidence is contrary to the version of PW1.
34.In this case, PW11 stated that he found 100% burn injuries on the body of the deceased. The case of the prosecution is that the deceased herself poured kerosene and set fire on her. While cross examination, PW11 says that the deceased had been alive, when she was set to fire the wind pipe and the lungs will have to soot particles or dust created by flame. But PW11 has not found any dust particles in the wind pipe and in the lungs and further, PW11 stated that when the deceased wore any inner garment, there is no possibility of 100% burn injuries. But in this case, PW11 found 100% burn injuries. Further, PW11 admitted during his cross http://www.judis.nic.in 24 examination that the deceased would have been set on fire without any clothes. But PW1 during his evidence stated that at the time of occurrence, his daughter wore nighty. PW11 has not stated that at the time of postmortem, she saw any cloths on the body of the deceased. But it is the duty of the Doctor, who conducted postmortem to find out what are dresses worn by the deceased. But PW11 failed to find out the dresses in the body of the deceased. At this juncture, it is necessary to refer the cross examination of PW1 and PW11. PW1 during his cross examination stated as follows:-
“ehd; ghj;U:k; brd;W ,uz;L
epkplk; fHpj;J ghj;U:ik jhz;o
beUg;g[ld; vd; kfs; nghdhy;
me;j ,lj;jpy; vwpe;J nghd Jzpfs;
vJt[k; fPnH tpHtpy;iy ehd; ghh;f;Fk;
nghnj vd; kfs; caph; gphpe;Jtpl;lJ
rhf;if nghl;L beUg;ig mizj;njd;
vd;dhy; milahsk; fz;Lgpof;f Koahj
epiyapy; ,Ue;jjhy; jhd; g[tdhtplk;
nfl;nld; ehd; ghh;f;Fk; nghJ vd; kfs;
epd;W bfhz;L fPnH tpGe;jJ
fhpf;fl;ilahf 100 rjtpfpjk; vhpe;jphpe;j gpnujj;ijjhd; ehd; ghh;j;njd; vd;why;
Kf;fhy; thrp vhpe;j epiyna ehd;
ghh;j;njd;.”
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25
35.PW11 during his cross examination stated as follows:-
“”xUbgz;zhf ,Uf;Fk;gl;rj;jp
y; me;j clypy; vd;bdd;d
Jzpkzpfs; ,Ue;jJ vd;gij ehd;
ghh;f;f ntz;Lk; rpe;bjl;of; bkl;ohpay;
mil mzpe;jpUe;jhs; mJ jPapd; R{l;oy;
clypy; xl;of;bfhs;Sk; tha;g;g[s;sJ
vd;gij ftdpj;J vGj ntz;Lk;
bghJthf bgl;of;nfhl; kw;Wk; gpnurpah;
mzpe;jpUf;Fk; gl;rj;jpy; me;j
cilfshy; kiwf;fg;gl;l gFjpfspy;
jPf;fhaq;fs; tutha;g;gpy;iy vd;why;
rhpjhd; ehd; ghh;j;j rlyj;jpyd; taJ 25
Mf ,Uf;Fk;gl;rj;jpy; ey;y
nghrhf;Fld; ,Ue;j clk;g[ vd;gjhy;
mJ capUld; ,Uf;Fk;bghGJ jPg;gw;wp
vhpe;jpUf;Fk;gl;rjj;jpy; gjl;lj;jpdhYk;
gaj;jpdhYk; mjpfkhf
K:r;R ,iug;g[ Vw;gl;oUf;Fk; vd;why;
rhpjhd; mt;thW capUld; xU egh;
vwpf;fg;gl;oUf;Fk; rkaj;jpy;
jPf;fhaq;fSld; mth; Xltjhf itj;Jf;
bfhz;lhy; eP vg;nghJk; nky; nehf;fp
vwpfpd;w jd;ik cila fhuzj;jhy;
me;j jPapd; g[if clypy; cs;s
Jzpkzpfs; midj;ija[k; mth;
Rthfj;jpd;nghJ cs;spGj;jpUf;f
ntz;Lk; vd;why; rhpjhd; mt;thW
Rthrj;ij cs;ns ,Gf;Fk;nghJ
K:r;rpf;FHha; kw;Wk; EiuaPuy;
gFjpapypUe;J me;j g[ifapd; glyk;
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goe;jpUf;Fk; vd;why; rhpjhd; clypd;
cs;SUg;g[ rptg;ghf fhzg;gLfpwJ
vd;why; me;j cWg;ig bghWj;jtiuapy;
cs;ns brd;w ,uj;jkhdJ btspnaw
tha;g;gpy;yhky; mq;nfna ciwe;J
ngha;tpLk; vd;why; rhpjhd; cs;spUf;Fk;
cWg;g[fs; jPapy; fUfp ,Ug;gjhf ehd;
Fwpg;gpltpy;iy vd;why; rhpjhd;
jPg;gpHk;gpdhy; Vw;gLk; Jfs;fs;
EiuaPuypy; gjpe;jpUg;gjhf ehd;
Fwpg;gpltpy;iy jPg;gpHk;g[fs; clk;gpy; gw;wp vwpa[k;nghJ capUld; ,Uf;Fk; egh;
Rthrk; nkw;bfhz;lhy; jPg;gpHk;g[fspd;
tpisthf fhh;gd; nkhdhf;i]L
Rthrpf;Fk; nghJ ,uj;jj;jpy; mJ
fye;J kuzk; Vw;gl tha;g;g[z;L vd;why;
rhpjhjd; ehd; ,we;j clypy; ,Ue;J
jpRf;fis vLj;J jla mwptpay;
Ma;tfj;jpw;F mDg;gp clypy; cs;s fhpa
mkpy tha[tpd; got mlh;j;jp gw;wp
bjhpe;Jbfhs;s Kaw;rp bra;atpy;iy ,e;j
tHf;fpy; ehd; ghh;j;j rlyj;ij clypy;
ve;j cila[k; ,y;yhky; jP itj;j
bfhsls tha;g;g[s;sjh vd;why; cs;sJ.”
36.As per the evidence of PW1, when after hearing the noise of the neighbours, he saw that his neighbours Selvi and Bhuvana were there in the place of occurrence. But they were not cited as witnesses. They are the material witnesses and hence, the non-examination of the above persons is fatal to the prosecution. http://www.judis.nic.in 27
37.On careful perusal of the evidence of PW1 and PW11, there are lot of contradictions. Hence, the evidence of PW1 is not corroborated with the evidence of the Doctor/PW11. When the oral evidence of the witness is not corroborated with the medical evidence, then the accused is entitled to the benefit of acquittal.
38.The next contention raised on the side of the appellant/accused is that all the ocular witnesses were summoned and examined on the same day and no referral time was given and hence, the 164 statement of the witnesses cannot be relied upon.
39.In this case, PW14 gave requisition to record the 164 statement of the witnesses. In his requisition, it is stated that there is a chance for the witness to turn hostile and hence, it is necessary to record the statement of the witnesses under section 164 of the Criminal Procedure Code. At this juncture, it is necessary to refer the cross examination of PW14, which would run thus:-
“jiyik ePjpj;Jiw eLthpd;
bray;Kiw Miza[ld; Ma;thsh;
ntz;LnfhSk; tHf;fpd; Ruf;FK; te;jJ ehd;
mjid ghh;j;njd; tHf;fpd; Ruf;fj;jpy;
Kjy; guhtpw;Fk; 2tJ ghuhtpw;Fk; khWghL
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cs;sJ rhl;rpfis ehd; tprhhpf;Fk; tiu
mth;fs; nkw;go Kjy; ghuhtpy; cs;s
tpraq;fis brhy;y tUfpwhh;fsh my;yJ
2tJ ghuhtpy; cs;s traq;fis brhy;y
tUfpwhh;fsh vd;W vdf;F bjhpahJ
Ma;thshpd; ntz;Lnfhspd; Kjy; thpapnyna rhl;rpfs; gpwH;rhl;rpahf khw tha;g;g[s;sjhy; rhl;rpfsplk; F.tp.K.r-164d; fPH; thf;FK:yk;
bgwntz;oaJ mtrpak; vd
Fwpg;gplg;gl;Ls;sJ.”
40.On careful perusal of the evidence of cross examination of PW14, it reveals that the prosecution did not trust the witnesses and hence, the witnessed were forwarded for recording 164 statement. Hence, the argument put forth on the side of the accused stating that 164 statement cannot relied upon is acceptable.
41.For all the reasons stated above, this court is of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and the trial court without properly appreciating the entire materials on record, both oral and documentary had given a wrong finding, which according to this court, is liable to be set aside and it is hereby set aside. http://www.judis.nic.in 29
42.In the result, this Criminal Appeal is allowed. The impugned judgment of conviction and sentence are set aside. The appellant/Accused is acquitted of the charges levelled against them. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
30.06.2020 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 30 T.KRISHNAVALLI,J er To,
1.The Sessions Judge, Mahila Court, Pudukottai.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.A.(MD)No.178 of 2017
30.06.2020 http://www.judis.nic.in