Madras High Court
Raman vs State Represented By on 5 December, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
Crl.A.No.167 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 06.09.2024
Pronounced on 05.12.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.No.167 of 2019
Raman
... Appellants/Accused
Vs.
State represented by
Inspector of Police,
Amaravathi Police Station,
Tiruppur District.
(Crime No.95/2016)
... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the conviction and sentence imposed on the
appellant by the learned III Additional District and Sessions Judge,
Dharapuram in SC.No.173 of 2016 by a judgment dated 31.01.2019.
For Appellant : Mr.K.Balasubramaniam
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
*****
JUDGMENT
Page 1 of 27
https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 C.KUMARAPPAN, J.
The sole accused is the appellant herein. He filed the instant Criminal Appeal against the order of conviction passed by the learned III Additional District and Sessions Judge, Dharapuram in SC.No.173 of 2016 vide order dated 31.01.2019, by and in which he was convicted under Section 302 IPC and sentenced to undergo life imprisonment.
2. While flittering the facts, the necessary details, which are relevant for the effective adjudication of the instant Criminal Appeal is that, one Marimuthu @ Seenan was the victim. According to the prosecution, he was murdered by the accused, who was his close friend, and belong to the same village. It was 28.07.2016, the accused went to the deceased house in the midnight at 2.00.am, and consumed liquor along with deceased. Since the deceased wanted to have some more drinks, both the accused and the deceased went to Eliyamuthur and purchased liquor. Thereafter, they had consumed the same near Kallapuram Panchayat Office and returned to the house of the deceased and continued their chat. Now, it was the turn of the appellant, and he expressed his desire to have more liquor and asked money Page 2 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 with the deceased. But, the deceased refused to give money, and demanded Rs.5,000/-, which the appellant had taken from him. At this time, the event turned to a wrong side as the accused got furious with the flaunt statement of the deceased, asking him to share his wife with him. After the above occurrence, according to the prosecution, the accused left the scene of occurrence and returned at about 3.30.am with a bill hook and attacked the deceased, which resulted in the death of the deceased.
2.1. While so, on 28.07.2016 at about 2.30.p.m, when Chinna Karuppan [PW5], informed to the deceased brother Easwaran [PW1], about the death of the deceased, he rushed to the scene of occurrence, and found him dead. On the same day, he went to the police station and gave a complaint [Ex.P1] at about 15:30 hours, before the Special Sub Inspector of police Mr.Thangavel, who was examined herein as PW11. On receipt of the said complaint, PW11 registered an FIR in Crime No.95 of 2016 and forwarded the same to the Investigating Officer [PW14] and to the concerned jurisdictional Magistrate.
Page 3 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 2.2. On receipt of a copy of the FIR, the Investigating Officer Mr.Anbarasu [PW14] went to the scene of occurrence qua the deceased's house, at about 16:30 hours on the same day and prepared the observation mahazar [Ex.P2] and rough sketch [Ex.P11], in the presence of Thangavel [PW4] and one Chandrasekaran. He also seized blood stained mat, pillow, a piece of flooring, brandy bottle and other material objects from there. Thereafter, he conducted inquest between 18.00 hours to 21:00 hours, in the presence of PW1 to PW3, PW5 and PW6 and also made arrangements for the postmortem.
2.3. On 29.07.2016 at about 7.00 a.m, he arrested the accused in the presence of Muthu Mohamad [PW8] and one Chandran. After the arrest, the accused voluntarily gave a confession statement, based on which, a discovery of fact was effected by recovering a blood stained bill hook. He also recovered the blood stained shirt of the deceased and recorded the statements of the above witnesses.
2.4. On 30.07.2016 he recorded the statement from one Mohan Raj, Sivaraj, Magudeeswaran, Balaji, Karthikeyan and the Special Sub Inspector Page 4 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 of Police Mr.Thangavel and other witnesses. On 05.08.2016, he recorded the statement of the Doctor Gowtham Vinayak [PW12], who conducted the postmortem on the body of the deceased. In his postmortem report, he had recorded the following injuries:-
“A body of moderately built male lying on its back. External injures were present.
(1)cut injury seen over rt. Ear extending to cheek 10 X 2 X 2 cm (2)cut injury seen over rt. side upper ear to cheek 10 X 2 X 2 cm (3)cut injury seen over middle of ear to cheek 15 X 2 X 2 cm (4)cut injury seen over centre of ear to cheek 20 X 3 X 4 cm (5)cut injury seen over rt. parietal area 10 X 3 X 3 cm (6)cut injury seen over the centre of chin 8 X 1 X 3 cm (7)cut injury seen over lt.side neck 6 X 1 cm (8)cut injury seen over rt. little finger 1 X 1 cm (9)cut injury seen over the tip of lt ring finger (10)cut injury misc. 6 X 1 X 2 cm at the angle of rt side mouth.” He also opined that the deceased would have died due to the head injury.
2.5. PW14, the Investigating Officer also recorded the statement of scientific officer and other witnesses. Eventually, after completion of the Page 5 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 investigation, he laid the final report on 06.09.2016 charging the accused of having committed the offence under Section 302 IPC.
3. At Trial, the prosecution relied as many as 14 witnesses as PW1 to PW14, marked 14 documents as Exs.P1 to P14, and 14 Material Objects as M.O.1 to 14.
4. The Trial Court, after having considered the oral and documentary evidences, had ultimately found that the prosecution has proved the charge against the accused, beyond reasonable doubts and convicted and sentenced him to undergo life imprisonment under Section 302 IPC. Aggrieved by the same, the accused has preferred the instant Criminal Appeal.
5. Assailing the order of conviction, the learned counsel for the appellant would vehemently contend that, there was a long delay in registering the FIR, and that the witnesses, relied by the prosecution to prove the last seen theory, have not spoken at all about the presence of both the accused and deceased together and that the Motive was also not proved. It is the further submission of the learned counsel for the appellant that the conduct of Chinna Karuppan [PW5] and Palanisami [PW6], who testified Page 6 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 that they had seen the accused with the bill hook on the midnight of 28.07.2016, is highly unnatural as they did not disclose the same to anyone else, until the death of the deceased. It is the further contention of the learned counsel for the appellant that the presence of PW5, near the scene of occurrence, is highly doubtful, as his house is not shown anywhere near the scene of occurrence in the rough sketch.
6. The material witness one Mr.Balaji, who according to the prosecution had seen both the accused and deceased together, was curiously not examined before the Court. The evidence of the recovery witnesses and the confession statement witnesses would demonstrate fallacy over the discovery of fact. It is the further submission of the learned counsel that, in spite of the availability of many material objects in the scene of occurrence, the failure on the part of the prosecution to lift the fingerprint from them, would also go against the accused. To cap it all, it is the contention of the learned counsel for the appellant that the actual time of death of the deceased was not established. It is in this background, the learned counsel for the appellant would pray for an order of acquittal from this Court. Page 7 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019
7. Contending contra, the learned Additional Public Prosecutor would state that through the examination of PW1 to PW3, the motive between the accused and the deceased was established and that from the evidences of PW5 and PW6, the last seen theory had been proved, beyond reasonable doubts. The proof of last seen theory, coupled with recovery of blood stained dress material and blood stained bill hook from the deceased, connects the accused with the occurrence. He would also contend that the accused did not explain the presence of the blood stains in his dress materials. He would further contend that from the proved incriminating circumstances, namely motive, last seen theory and the discovery of fact of recovering the blood stained bill hook and the dress material, a complete chain is formed, unerringly pointing towards the guilt of the accused in exclusion of all other hypothesis. Thus, it is the contention of the learned Additional Public Prosecutor that, the prosecution has proved all the incriminating circumstances beyond reasonable doubts. In this view of the matter, he would submit that there are no ground to interfere with the order of the Trial Court. Hence, prayed to dismiss the instant Criminal Appeal.
8. We have given our anxious consideration to either side submissions. Page 8 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 Page 9 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019
9. The entire prosecution's case rests upon the circumstantial evidence. The incriminating circumstances relied by the prosecution are Motive, Last seen theory and the Discovery of fact. In order to prove the motive, the prosecution has relied upon the evidences of PW1 to PW3, who are the elder brother, mother and wife of the deceased, respectively. They had spoken about the hand-loan of Rs.5,000/-, taken by the accused from the deceased and it's non-repayment. Here, the prosecution's case is that, the murder was not because of the mere non-repayment of the loan amount, but owing to the humiliating pejorative misogynistic utterance by the deceased. Even according to the prosecution, the alleged non-repayment did not disturb their friendship, as they twice had drinks without any issues.
10. The situation flared up, only after the deceased asked the accused to send his wife to share the bed with him. However, there is no evidence in this regard. Even from the evidences of PW1 to PW3, this Court could not find even a semblance of material to infer such utterance, that provoked the accused to kill the deceased. As such, the evidences on the incriminating circumstance of motive is enigmatic and hence, we are of the firm view that the prosecution has miserably failed to prove the motive beyond any Page 10 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 reasonable doubts. At the most, the alleged motive projected by the prosecution, could only be an apprehension or suspicion against the accused and nothing else. It is well settled principle of law that the suspicion, howsoever high, cannot be a substitute for proof.
11. Even assuming that we accept the case of the prosecution on the motive, still the prosecution has miserably failed to prove the other incriminating circumstances of last seen theory and discovery of fact, as discussed below.
12. Regarding the last seen theory, the prosecution relied upon the evidences of PW-5-Chinna Karuppan and PW6-Palanisami. According to PW5, on the early hours of 28.07.2016 at about 3.15.am, when he came out from his residence to ease himself, he had seen the accused with a bill hook. He further deposed about the accused entering and coming out of the house of the deceased. According to him, his house is close to the scene of occurrence, qua the deceased's house. However, in the rough sketch [Ex.P11], there is no reference to PW5's house. This factum was admitted by PW5 himself during his cross examination, in the following manner:- Page 11 of 27
https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 “vd;dplk; fhl;lgLk; tiuglj;jpy; vd;Dila tPL fhl;lgltpy;iy vd;why; rhpjhd;/”
13. Though PW5 speaks about the accused carrying a bill hook, he does not speak of having seen both the deceased and accused together. In this regard, PW5 has admitted as follows:-
“rk;gtj;jd;W uhkida[k; rPdhida[k; ehd; xd;whf ghh;f;ftpy;iy/”
14. The other witness, who had spoken about the last seen theory was PW6-Palanisami. According to him, at the early hours of 28.07.2016 at about 4:30.am, the accused confessed to him of having murdered the deceased. The relevant portion of the evidence of PW6 is as follows:-
“28k; njjp 7tJ khjj;jpy; fhiy 4/30 kzpastpy; vGe;J ehDk; ehr;rpKj;Jt[k; fUk;g[ njhl;lj;jpy; ntiyf;F bry;y g[wg;gl;L bfhz;oUe;njhk;/ v';fs; tPlL; Kd;g[ uhkd; te;J vd;dplk; mUthshy; rPdhid btl;o tpl;ljhf brhd;dhh;/”
15. However, in spite of such an open statement of the accused, the silence of PW6 in not forthcoming, appears to be contentious. Likewise, the prosecution has also not explained as to why Mr.Nachimuthu was not Page 12 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 examined. It is the prosecution's case that they had effected discovery of fact of the blood stained bill hook and the blood stained dress materials from the accused. However, PW6 who saw the accused at 4.30.am, did not say anything as to the blood stained bill hook and the blood stained dress materials of the accused. Had he really seen the accused at 4:30.am, he would have noticed the blood stains at least from the accused's dress materials. However, during cross examination, he had categorically stated that there were no blood stains in the bill hook, which admission reads as follows:-
“ehd; uhkid ghh;j;jnghJ ifapy; Ma[jk; vJt[k; ,y;iy vd;why; rhpay;y/ mUths; ifapy; ,Ue;jJ/ Mdhy; mjpy; uj;jk; ,Ue;jjh vd;why; uj;jk; ,y;iy/”
16. From the above admission, we may draw two possible inferences. Firstly, if the recovery of the blood stained bill hook was at the instance of the accused, then the presence of PW6 near the scene of occurrence and his evidence as to the information provided by the accused, becomes untrustworthy. The other possible inference is that, an occasion may not have arisen for the prosecution to recover blood stained bill hook and dress materials, since PW6 did not see any blood stains immediately after the Page 13 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 alleged occurrence. More so, when there was every possibility for blood being smeared on the blade of the weapon, since PW6 claims to seen the accused, immediately after the attack.
17. The above instances, coupled with PW6's unnatural conduct of not forthcoming with the confession of the accused, would make him as a wholly unreliable witness. No doubt each person may have a different reaction to a particular action. But, when we look at the entire circumstances of the case as indicated hereinabove, together with PW5's statement of not seeing any blood stain, would make their evidence untrustworthy. It would be relevant to note that even in the previous statement recorded under Section 161 Cr.P.C, PW6 did not refer to the bill hook carried by the accused. This is fortified through the evidence of the Investigating Officer [PW14]. For ready reference, the following admission of PW14 is extracted hereinbelow:-
“mrh/5 Md rpd;dfUg;gzd; vdJ tprhuizapd; nghJ vjpup uj;jf;fiw goe;j mUthSld; ,we;J nghdthpd; tPl;Lg;gf;fk; ,Ue;J te;jij ghh;jj; jhf brhy;ypas [ s ; huh vd;why; brhy;ytpy;iy/ mrh/6 gHdprr; hkp vdJ tprhuizapdn; ghJ vjpup mUthSld; te;jij ghh;j;jjhf brhy;ypas [ s ; huh vd;why; mg;go brhy;ytpy;iy/ Mdhy;
mjpfhiy 4/30 kzpf;F nkw;go vjphpia gHdpr;rhkp bry;tg[uj;jpy;Page 14 of 27
https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 ,Uf;Fk; vy;yj;Jiu njhl;lj;jpw;F mUnf itj;J ghh;j;jjhf ; bfhz;nld; vd;why; rhpjhd;/” tprhuizapy; bjhpeJ
18. According to the above admission, PW6 had not informed PW14 about his claim of having seen the accused with the bill hook. In the light of the above factual scenario, the testimony of PW6 would be highly untrustworthy. In such view of the matter, it is amply clear that the prosecution has miserably failed to prove the last seen theory.
19. It is further relevant to refer that no witnesses had spoken about the presence of the deceased at the relevant point of time in his residence qua the scene of occurrence. According to the prosecution case, the deceased and the accused went to Eliyamuthur twice to purchase liquor. But, none from the liquor shop were examined to speak about the company of both the accused and the deceased together. Above all, the medical evidence does not establish the time of death. Thus, from the above infirmities, we have no hesitation to arrive at a indubitable opinion on the miserable failure by the prosecution in proving the last seen theory.
Page 15 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019
20. Before we deal with the other aspect viz., the discovery of fact, we deem it appropriate to discuss some of the precedents similar to that of the case in hand for better appreciation of evidence.
21. The Hon'ble Supreme Court in the case of Shailendra Rajdev Pasvan and others Vs.State of Gujarat and Others reported in (2020) 14 SCC 750, held that in the case relating to circumstantial evidence, law needs two fold requirements, i) Every link in the chain of the circumstances has to be established and ii) All the circumstances must be consistent pointing only towards the guilt of the accused. For ready reference, we deem it appropriate to extract paragraphs 13, 14, 15 and 17 of Shailendra Rajdev Pasvan case, which read as follows:-
“13. Thus, the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates twofold requirements:-
(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.
(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.
14. This court in the case of Trimukh Maroti Kirkan v. State Page 16 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 of Maharashtra has enunciated the aforesaid principle as under:-
“12.....The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence”.
15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodhraj v. State of J & K, Rambraksh v. State of Chhattisgarh , Anjan Kumar Sharma v. State of Assam following principle of law, in this regard, has been enunciated: (Shailendra Rajdev Pasvan Case, SCC OnLine Guj para 16)-
“16.......The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is Page 17 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”.
16. In the case at hand, evidence of PW 28 and PW 29, who were crucial to the case of prosecution to establish that deceased was last seen with Appellant Accused 1, is riddled with exexplained contradictions and thus were rightly disbelieved by the trial court. The High Court committed an error of law in placing reliance upon the evidence of the aforesaid two witnesses. The High Court also failed to take into account the time gap between the point when the appellant-Accused 1 and the deceased were seen together and when the death is alleged to have occurred. According to the prosecution evidence, the two were seen together on 4-2-2001 at about 10:30 a.m. The dead body was recovered on 13-2-2001. Post-mortem was conducted on 14-2-2001. Although the possible time of death is not indicated in the post-mortem report but the doctor who carried out the post-mortem opined in the statement that the time of death can be estimated to be 36 to 48 hours before the post mortem. This clearly goes to show that there was a huge time gap between the point when the accused and deceased were Page 18 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 last seen together and the time of death. This crucial fact has been miserably overlooked by the High Court. Apart from extra-judicial confession by appellant-Accused No.-1, no direct evidence was adduced by the prosecution to establish involvement of the accused in the alleged crime. Entire case of the prosecution was based on circumstantial evidence and theory of last seen together. The extra- judicial confession of Appellant 1 before the complainant and other relatives and recovery of the dead body were linked together by the prosecution to form a chain.
17. It is well settled by now that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused."
22. In yet another judgment in Raja Naykar Vs. State of Chhattisgarh reported in (2024) 3 SCC 481, Hon'ble Supreme Court has held that in the case of circumstantial evidence any discovery of fact in a place accessible to all andin common place, become doubtful. The relevant paragraph 31 reads as follows:
"31. Insofar as the finding of the High Court that the appellant Page 19 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 has failed to give any explanation in his statement under Section 313 Cr. P.C. is concerned, we find that the High Court has failed to appreciate the basic principle that it is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-explanation of the accused could be taken into consideration. In any case, as held by this Court in the case of Sharad Birdhichand Sarda in a case based on circumstantial evidence, the non- explanation or false explanation of the accused under Section 313 Cr.P.C. cannot be used as an additional link to complete the chain of circumstances. It can only be used to fortify the conclusion of guilt already arrived at on the basis of other proven circumstances."
23. In the case of Pardeep Kumar Vs. State of Haryana reported in (2024) 3 SCC 324, the Hon'ble Supreme Court relied on the oft-quoted judgment of Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116. In Sharad Birdhichand Sarda case (cited supra), Hon'ble Supreme Court laid down the Panchsheel principle in paragraph 153 and 154 and the same read as follows:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.Page 20 of 27
https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(1973) 2 SCC 793 : 1973 SCC (Crl) 1033 where the following observations were made (SCCp.807, para 19):
"19.......Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on Page 21 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 circumstantial evidence (Sharad Birdhichand Sarda v. State of Maharashtra, SCC p.185, paras 153-54)"
Therefore, in the case of circumstantial evidence, all the circumstances has to be proved without their being any missing link.
24. In the backdrop of the above settled legal principles, we have already arrived at a conclusion that the prosecution has miserably failed to prove the motive, and the other circumstance of last seen theory. Now, the only incriminating circumstance left to be discussed is, discovery of fact.
25 According to the prosecution, a blood stained bill hook was recovered in the presence of PW7. He would state that on 29.07.2016 at about 9.30.am at the instance of the accused, M.O.10 and M.O.11 were recovered. From his evidence, what would emerge is, even after 24 hours of the occurrence, there was a blood stain in M.O.10-bill hook.
26. This discovery of fact was effected in pursuance of the confession statement given by the accused in the presence of Muthu Mohamad [PW8].
During cross examination, PW8-Muthu Mohamad did not support the Page 22 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 prosecution's case and had pleaded ignorance as to contents of the statement of the accused to the police. According to him, he simply signed in the paper prepared by the police. The relevant admission is as follows:-
“nghyPrhh; M$h; vjphpaplk; vd;d tprhhpj;jhh;fs; vd;gJ bjhpahJ/ vd;d nfl;L vGjpdhh;fs; vd;gJk; bjhpahJ/ mnjnghy; vjphp uhkd; nghyPrhhplk; vd;d brhd;dhh; vd;w tptuKk; vdf;F bjhpahJ/ vGjpa gpwF nghyPrhh; js;sp epd;wpUe;j vd;id miHj;J ifbaGj;J nfl;lhh;fs; vd;whYk; ehd; nghl;nld; vd;whYk; rhpjhd;/”
27. In the light of the above admission of PW8, the recovery of the blood stained bill hook and the blood stained dress materials, becomes doubtful. According to the scientific officer's evidence, the bill hook and dress materials of the accused had blood grouping of “B”. The pillow, which was recovered at the scene of occurrence is also has the same blood grouping of “B”. But, through the evidence of PW8, this Court had a serious doubt in respect of the statement recorded under Section 27 Cr.P.C. From the evidence of PW8, and the dichotomy between the statement of PW5 and PW6, on one side, and PW7 on the other side, in respect of presence of blood stains, this Court is of the firm view that the prosecution has miserably failed to prove the discovery of fact also, beyond reasonable doubts.Page 23 of 27
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28. Further, as rightly contended by the learned counsel for the appellant, though the Investigating Officer has recovered so many material objects, including the brandy bottle at the scene of occurrence, the failure to lift fingerprint at the scene of occurrence, would demonstrate the casual attitude of the police in conducting the investigation in a case of this nature. When there was a possibility of securing scientific evidence, it is expected from the Investigating Officer to explore the possibility of using such scientific techniques, to prove the case.
29. According to the Investigating Officer, one Mr.Balaji had seen both the accused and the deceased together. More curiously and unfortunately, the said Balaji was not examined before the Court. In the light of the above lapses and also on account of the failure on the part of the prosecution to prove all the incriminating circumstances beyond reasonable doubts, it would be prudent to interfere with the order of conviction and sentence imposed by the Trial Court.
30. The Trial Court, without going into the legal aspects and without Page 24 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019 appreciating the evidence in its right perspective, had dealt the issue superficially and arrived at a wrong conclusion, which necessitates us to set aside the order of conviction and sentence passed against the accused. Page 25 of 27 https://www.mhc.tn.gov.in/judis Crl.A.No.167 of 2019
31. In the result, this Criminal Appeal stands allowed. The judgment of the learned III Additional District and Sessions Judge, Dharapuram made in S.C.No.173 of 2016 dated 31.01.2019 is hereby set aside. As a concomitant, the appellant is acquitted from all the charges and the fine amount, if any paid by him, shall be directed to be refunded. The bail bond, if any, executed by the Appellant, shall stand cancelled.
[M.S.R., J.] [C.K., J.]
05.12.2024
Index:Yes
Speaking order
Neutral Citation: Yes
kmi
To
1. The III Additional District Court,
Dharapuram.
2.The Inspector of Police,
Amaravathi Police Station,
Tiruppur District.
3. The Public Prosecutor,
High Court,
Chennai-104.
Page 26 of 27
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Crl.A.No.167 of 2019
M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
kmi
Pre-delivery judgment made in
Crl.A.No.167 of 2019
05.12.2024
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