Madras High Court
Sathish vs State Rep. By Inspector Of Police on 20 February, 2023
Author: M.Sundar
Bench: M.Sundar, M.Nirmal Kumar
2023/MHC/788
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.02.2023
Coram
The Hon'ble Mr. Justice M.SUNDAR
and
The Hon'ble Mr. Justice M.NIRMAL KUMAR
Crl. Appeal No. 287 of 2021
Sathish .. Appellant
Vs
State rep. by Inspector of Police,
Shozhatharam Police Station,
Cuddalore District. .. Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C. against the
judgment passed in S.C. No.86 of 2010 dated 23.11.2010 by the
District and Mahalir Sessions Judge, Cuddalore.
For Appellant .. Mr.R.Balakrishnan
For Respondent .. Mr.S.Rajakumar,
Addl. Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by M.SUNDAR, J.) This judgement will now dispose of captioned Criminal Appeal which has been filed in this Court inter-alia under Section 374(2) of https://www.mhc.tn.gov.in/judis 2 'Code of Criminal Procedure, 1973' (hereinafter 'Cr.P.C.' for the sake of brevity) by the lone accused in S.C.No.86 of 2010 on the file of 'District Mahalir Sessions Judge, Cuddalore' (hereinafter 'Trial Court' for the sake of convenience and clarity).
2. The appellant, the deceased and the lone witness (other than official witnesses) who did not turn hostile i.e., P.W.1 are the blood relatives.
3. The deceased is one Savithri, wife of Pakkiri (P.W.1). The appellant who has been convicted for murder of Savithri is son of one Gopalakrishnan, who is brother of P.W.1 Pakkiri. To put it differently, the deceased is bghpak;kh (father's elder brother's wife) of the appellant who has been convicted of alleged offence under Section 302 of 'Indian Penal Code, 1860 (Central Act 45/1860)' (hereinafter 'IPC' for the sake of convenience and clarity).
4. The unfortunate occurrence was on 23.09.2009 at about 8.30 hours in the morning. The case of the prosecution is that when deceased Savithri was in the garden behind her house washing utensils and vessels the appellant assaulted her with a knife with the intention https://www.mhc.tn.gov.in/judis 3 of causing death. The motive as projected by the prosecution is, the family of the appellant does not have male heirs/descendants whereas the family of the deceased has male heirs/descendants and the further motive as projected by the prosecution is, the appellant verily believed that the deceased had practised some black magic (gpy;yp R{dpak;) and this is the reason for the appellant's family not having male heirs/descendants.
5. Appellant does not have any bad antecedents, this is his lone brush with law and he has been incarcerated from the date of occurrence i.e., 23.09.2009 and has therefore been behind bars for thirteen years now. To be noted, the appellant was 23 years of age on the date of occurrence.
6. Reverting to the trial which unfurled before the Trial Court, the prosecution examined 12 witnesses ie., P.Ws.1 to 12 and two witnesses were examined as D.Ws.1 and 2. Twelve exhibits were marked on the side of prosecution (Exs.P1 to P12). As regards material objects i.e., M.Os. as many as 12 material objects (M.Os.1 to 12) were marked by the prosecution and no material objects or exhibits were marked by the appellant.
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7. A very critical aspect of the matter to be noted is P.Ws.1 to 5 are private witnesses. As already alluded to supra, P.W.1 Pakkiri is none other than the spouse of the deceased. P.W.2 is a neighbour and P.Ws.3 to 5 are villagers who live in and around the vicinity of the scene of occurrence. P.W.6 Manivel is the observation mahazar witness. As regards P.Ws.7 to 12 who are the official witnesses, P.W.7 is the 'Village Administrative Officer' (hereinafter 'VAO' for the sake of brevity) before whom confession was recorded, P.W.8 is the forensic expert, P.W.9 is the doctor who conducted the post mortem, P.W.10 is the Sub Inspector of Police in the jurisdictional police station i.e., Shozhatharam police station in Cuddalore and P.Ws.11 and 12 are the successive investigating officers being Inspectors of Police in the said police station.
8. A very critical aspect of the matter is, other than P.W.1, the other private witnesses namely P.Ws.2, 3, 4 and 5 have turned hostile. Therefore, in the Trial Court, the entire matter hinges on the evidence of P.W.1.
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9. Mr.R.Balakrishnan, learned counsel for appellant and Mr.S.Rajakumar, learned State Additional Public Prosecutor for the State are before us.
10. Learned counsel for appellant, in his endeavour to convince us in this Section 374(2) Cr.P.C. legal drill, inter-alia submitted that P.W.1 is a interested witness and in any event his evidence is not good enough for conviction.
11. We carefully considered the aforementioned sheet anchor submission of the learned counsel for appellant. In the course of this legal drill of considering the aforementioned sheet anchor submission of the learned counsel for appellant, we find the following aspects of the matter:
(i) There is nothing to conclusively demonstrate that P.W.1 was present in the scene of occurrence, in other words, the presence of P.W.1 in the scene of occurrence is clearly doubtful and it is not clinchingly clear. We find that P.W.1 in his deposition, more particularly in the cross examination has denied the suggestion that he had gone https://www.mhc.tn.gov.in/judis 6 to either Ayudhakalam or Aayivaram on the date of occurrence but the complaint itself has been given by a villager and not by P.W.1. This clearly casts a cloud on the version that P.W.1 was present in the scene of occurrence;
(ii) As a sequitur to the previous point, the person who is said to have written the complaint one Muruganantham has been examined as D.W.2. In his deposition, D.W.2 has said that he has written the complaint whereas P.W.1 in his deposition does not say that Muruganantham has written the complaint. This also casts a cloud and serious doubt about the veracity of the version qua presence of P.W.1 in the scene of occurrence;
(iii) One Rangasamy who is Village Assistant of Karunakaranallur village has been examined as D.W.1 and he clearly says that it is the VAO who had written the complaint and handed over to one Krishnamoorthy (his subordinate) and requested the same to be given in the police station. This contradiction clearly adds to the existing hazy evidence and therefore it certainly https://www.mhc.tn.gov.in/judis 7 probabilises the defence rather than buttressing the prosecution case;
(iv) It is clear that there was animosity between the two parties i.e., deceased and P.W.1 on one side and accused who is now incarcerated. They are all blood relatives as already alluded to. Though they are blood relatives that there has been bad blood between them is not in dispute. To be noted, factual matrix that the appellant verily believed that the deceased had practised black magic and the appellant's family does not have male heirs/male descendants owing to such black magic practised by the deceased has already captured elsewhere supra in this order;
(v) The other witnesses who have been projected as eye witnesses viz., P.Ws. 2 to 5 have turned hostile and prosecution has not cross-examined them in a manner which brings out any contradiction;
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(vi) There was no blood stain on P.W.1 and this is explained away by saying that P.W.1 lifted the deceased from the side and therefore there were no blood stains. The relevant portion of the deposition reads as follows:
'iroy; ,Ue;J ehd; J}f;fpajhy; vd; nky;
uj;jf;fiw gltpy;iy ifapy; kl;Lk; uj;jf;fiw
goe;jJ ehd; ifia fGtptpl;nld;;/'
This clearly buttresses the contra version that P.W.1 was not present in the scene of occurrence.
12. The above points pertain P.W.1 not being in the scene of occurrence and P.W.1 evidence being the lone sheet anchor or hinge on which the conviction dangles, is clearly doubtful. This takes us to another point which is two material objects viz., M.Os.8 and 9 i.e., lungi and T shirt respectively which the appellant was allegedly wearing at the time of occurrence. Though M.Os. 8 and 9 have been marked, there is nothing to demonstrate as to how the same came into existence. Case file as regards M.Os.8 and 9 reads as follows:
'rk;gtj;jpd;nghJ vjphp mzpe;jpUe;j bts;is fUg;g[ rpW fl;lk; nghl;l fhl;ld; ifyp uj;jk; njha;e;jJ https://www.mhc.tn.gov.in/judis 9 rh bgh 8; vjphp mzpe;jpUe;j uj;jk; njha;e;j rptg;g[ bts;is fyh; nfhLnghl;l o rh;l; gdpad; rh bgh 9 MFk;/'
13. Per contra, learned State Additional Public Prosecutor leaned heavily on the nature of injuries and the evidence of the doctor who conducted the post mortem viz., P.W.9. Learned State Additional Public Prosecutor attempted to say that the injury was in the cervical region and therefore the intention is clear. We are of the considered view that it may not be necessary to go into this aspect of the matter as the lone witness i.e., P.W.1 on whose deposition the conviction is hinged, does not pass muster qua proof beyond doubt being degree of proof required for conviction. We also remind ourselves that this is not a matter of preponderance of probabilities and this is a matter of proof beyond doubt as proof beyond doubt is the degree of proof required for conviction more so for an alleged offence under Section 302 I.P.C. In the light of discussion thus far we have no hesitation in saying that the evidence is clearly lacking and far below required degree of proof.
14. The sequitur of narrative, discussion and dispositive reasoning set out supra is, we allow the captioned appeal, set aside https://www.mhc.tn.gov.in/judis 10 the conviction and sentence of the Trial Court vide judgement dated 23.11.2010 and direct that the appellant be set at liberty i.e., released forthwith if not required in any other case/cases.
(M.S.J.) (M.N.K.J.) 20.02.2023 Index: Yes Neutral Citation:Yes mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Cuddalore. To
1.The District Mahalir Sessions Judge, Cuddalore.
2.The Inspector of Police, Shozhatharam Police Station, Cuddalore District.
3.The Superintendent, Central Prison, Cuddalore.
4.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis 11 M.SUNDAR, J.
and M.NIRMAL KUMAR, J.
mmi Crl. A. No.287 of 2021 20.02.2023 https://www.mhc.tn.gov.in/judis