Madras High Court
Mathiyan vs State Rep. By on 6 January, 2023
Crl.A.Nos.77 & 380 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
C.A.Nos.77 & 380 of 2016
1.Mathiyan
2.Kottipoosali
3.Kumar ... Appellants in C.A.No.77 of 2016
4.K.Murugan
5.Devaki ... Appellants in C.A.No.380 of 2016
Versus
State rep. by,
Inspector of Police,
Marandadhalli Police Station,
Dharmapuri.
(Crime No.4/2015). ... Respondent in C.A.No.77 of 2016
STATE: Represented by,
Inspector of Police,
Maarandahalli Police Station,
Crime No.4 of 2015,
Dharmapuri District. ... Respondent in C.A.No.380 of 2016
PRAYER in Crl.A.No.77 of 2016: Criminal Appeal filed under Section
374(2) of Cr.P.C., to admit and allow the appeal by setting aside the
judgment passed by the Learned Additional District and Sessions Judge,
Dharmapuri in S.C.No.51 of 2015 by its judgment dated 15.12.2015.
PRAYER in Crl.A.No.380 of 2016: Criminal Appeal filed under Section
374(2) of Cr.P.C., against the judgment of conviction, wherein the appellants
were found guilty under Section 304(i) of the Indian Penal Code and
sentenced to undergo 5 years Rigorous Imprisonment with a fine of Rs.500
with a default sentence of 3 months Rigorous Imprisonment by the learned
Additional Sessions Judge-Dharmapuri District in S.C.No.51 of 2015 by her
https://www.mhc.tn.gov.in/judis
Page 1 of 23
Crl.A.Nos.77 & 380 of 2016
judgment dated 15-12-2015.
For Appellant in
C.A.No.380 of 2016 : Mr.A.M.Amutha Ganesh for
M/s.T.Pappaiah Dharmaraj
For Appellant in
C.A.No.77 of 2016 : Mr.M.Selvam
For Respondents in both
Criminal Appeals : Mr.L.Baskaran,
Government Advocate (Crl. Side)
*****
COMMON JUDGMENT
Criminal Appeals are filed by the appellants (A1 to A5) to set aside the
judgment, dated 15.12.2015, made in S.C.No.51 of 2015 by the learned
Additional Sessions Judge, Dharmapuri.
2.Crl.A.No.77 of 2016 is filed by A3 to A5 and Crl.A.No.380 of 2016
is filed by A1 & A2. For the sake of convenience, the appellants are referred
to, as per their rank, in the charge sheet.
3.The gist of the case is that A1 & A2 were residing at Karikapatti
Village, Palacode Taluk, Dharmapuri District and A3 to A5 were residing at
Thimlamedu Village, Dhamapuri District. A1 and A2 are husband and wife
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
and A3 to A5 are their relatives. The defacto complainant/PW1 is the
brother-in-law of the deceased. In this case, A1, a lorry driver used to go
duty for fifteen days in a month. A2, the wife of A1 and one Murugan
(Hereinafter referred to as 'Deceased') had illicit relationship for the past ten
years. On coming to know about the same, A1 warned his wife/A2 not to
have any relationship with the deceased, thereafter, A2 started to avoid the
deceased. While this being so, the deceased constantly harassed and used to
approach A2. The complaint (Ex.P1) of PW1/defacto complainant is that he
and the appellants were having adjacent lands and carrying on with
agricultural activities. His brother-in-law/deceased used to visit him often.
On 03.01.2015, at about 11.00 p.m., when PW1 and his wife/PW2 were
keeping guard over the field, they saw one Tata Ace (MO2) entering the field
and house of A2. Within a short while, PW1 to PW3 heard some fighting
words and noise. All the three had gone there and saw the deceased was
assaulted by A1 and A2. A1 placed his leg on the neck and kicked the
deceased indiscriminately. A2 kicked on his chest and A3 to A5 joined them
and attacked the deceased indiscriminately all over his body. The deceased
asked some water, PW3 fetched the same, which was pushed away by A4.
PW1 to PW3, who were present there, were helpless. Thereafter, PW1 went
to the respondent Police Station and lodged the complaint (Ex.P1). PW10
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
received the complaint (Ex.P1). registered FIR (Ex.P9) in Crime No.4 of
2015 and forwarded the same to PW12. PW12, the Investigating Officer, on
receipt of Ex.P9, visited the scene of occurrence, in presence of PW4
prepared Observation Mahazar (Ex.P2), Rough Sketch (Ex.P15), recorded
the statement of the witnesses present in the scene of occurrence, conducted
inquest on the body of the deceased and made arrangement to send the body
for postmortem. PW9 is the Postmortem Doctor conducted autopsy and
issued postmortem certificate (Ex.P8) that 'the deceased would appear to
have died of shock and haemorrhage due to multiple injuries'. In the
meanwhile, on getting information, PW12 arrested A1 to A5 who were
standing in a bus stand in presence of PW5 and another witness, recorded the
confession statement of A1 (Ex.P4), seized the bike (MO1), Tata Ace (MO2)
and dress of the deceased (MO3 to MO5). After autopsy, PW6, the
constable handed over the body to the relatives of the deceased. PW8, the
Chemical Analyst gave viscera report (Ex.P6) 'alcohol or other poison was
no detected'. On examination of witnesses and collection of above said
documents, charge sheet was filed before the trail Court.
4.During trial, on the side of the prosecution, twelve witnesses
examined as PW1 to PW12 and sixteen documents marked as Exs.P1 to P16
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
and five Material Objects marked as MO1 to MO5. On conclusion of trial,
the trial Court, vide judgment, dated 15.12.2015 convicted A1 & A2 for
offence under Section 304(1) IPC and sentenced them to undergo five years
Rigorous Imprisonment each and to pay a fine of Rs.500/- each, in default, to
undergo three months Rigorous Imprisonment each. Similarly, A3 to A5
were convicted for offence under Section 304(1) r/w 34 IPC and sentenced to
undergo five years Rigorous Imprisonment each and to pay a fine of Rs.500/-
each, in default, to undergo three months Rigorous Imprisonment each.
Aggrieved over the same, the presents Criminal Appeals have been filed by
A1 to A5.
5.The submissions of the learned counsel for the appellants/accused
are as follows:-
(i)The learned counsel for the appellants/accused submitted that in this
case, except PW1 and PW2, the brother-in-law and sister of the deceased, no
other individual witnesses examined on the side of the prosecution. PW3, the
other eye witness did not support the case of the prosecution. PW1 admitted
that his field is almost three kilometers away if approached by road and one
kilometer if by walk through the fields. He further admitted that on the date
of occurrence, there was no reason for PW1 and his wife/PW2 to stay and
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
keep watch over the field. Added to it, PW1 admitted he does not know to
read or write Tamil. In this case, after the occurrence, a written complaint
was given which was marked as Ex.P1. PW1 admitted that the complaint
(Ex.P1) was written by the Inspector of Police in the respondent Police
Station. PW10, the Sub Inspector of Police stated that a written complaint
(Ex.P1) was brought by PW1. From the complaint (Ex.P1), there is no
recording to show that the complaint (Ex.P1) was read over, explained to
PW1 and thereafter, he put his signature in it. On the other hand, PW1
stated he is not aware about the contents in the complaint (Ex.P1).
Strangely, in this case, all the five accused name are found in the complaint
(Ex.P1). Thus, the presence and evidence of PW1 to PW3 in the scene of
occurrence and the complaint (Ex.P1) coming into existence are highly
doubtful.
(ii)He further submitted that PW1 admits in his field as well, in the
accused field, no electricity connection available. Admittedly, in this case,
the occurrence taken place during dark at night hours at about 11.00 p.m.
PW1 admits that at about 02.00 a.m., on 04.01.2015, the Inspector of Police
along with four or five Police personnels visited the scene of occurrence,
made arrangement to send the body of the deceased to the Government
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
Hospital, Dharmapuri by ambulance, thereafter, PW1 was informed to come
to the Police Station. In the meanwhile, the Deputy Superintendent of Police
reached the scene of occurrence, by the time, the body shifted to the
Government Hosptial, Dharmapuri, thereafter, the Police took adjacent land
owners Krishnan, Saroja, Ragupathy and Subramani for enquiry. PW1
stated that he went to the respondent Police Station between 03.00 a.m., and
03.30 a.m., on his oral complaint, the Inspector of Police wrote the written
complaint, in which PW1 signed, which was around 04.00 a.m., to 04.30
a.m. PW1 further stated that on the date of occurrence, there was no
enclosure put for goat or cow to keep watch over them. PW1 admitted that
from 02.00 a.m. to 02.00 p.m., on 04.01.2015, he, his wife/PW2, wife of the
deceased Lakshmi were present in the respondent Police Station, thereafter,
they went to the Government Hospital, Dharmapuri straight away and only
on the next day night, they returned to their home. PW1 further admitted
from his filed, A1's field is not visible due to bushes and topography. It was
PW1 and PW3 alone, who went to the scene of occurrence and witnessed the
assault of the accused. PW3 not supported the case of the prosecution.
Thus, the only evidence of PW1 is available, which is also highly doubtful,
contradictory and a motivated one.
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
(iii)From the evidence of PW1, it is seen that the complaint was written
by the Inspector of Police. Likewise, the presence of Police in the scene of
occurrence was by 02.00 a.m. On the contrary, the records created as though
the complaint was lodged by PW1 at about 06.30 a.m., and thereafter, the
Police reached the scene of occurrence at 08.00 a.m., and conducted inquest
between 09.30 a.m., and 12.30 p.m., on 04.01.2015 and, handed over the
body to PW6 at about 12.45 p.m., which also proved to be false for the
reason that the wife of the deceased though projected as inquest witness, she
was not examined during trial. PW1 confirms the wife of the deceased was
in the Police Station. Hence, the entire investigation has been conducted in
the Police Station and records created to suit the case of the prosecution.
(iv)He further submitted that the arrest of A1 to A5, at about 03.00
p.m., near the bus stand is also highly artificial. From the confession of A1,
no concealed items were seized except the Tata Ace (MO2), which was
openly available there. PW1 and PW2 categorically stated the time of visit of
Police officials to the scene of occurrence. PW2 stated that forty to fifty
villagers came to Police Station, but none of them examined. PW10 admitted
that on 03.01.2015, he received information over phone and he informed the
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
same to PW12 immediately. Thereafter, PW12 reached the scene of
occurrence on the same night. But PW12 gives a different version that only
by 07.30 a.m., he was informed about the occurrence and he reached the
scene of occurrence at about 08.00 a.m., conducted investigation and the
inquest was between 09.30 a.m., and 12.30 p.m.
(v)He further submitted that though the accused kicked the deceased
all over the body wearing chappels, no chappel recovered from any of the
accused. The evidence of PW1, PW3, PW4, PW10 & PW12 are
contradictory. In this case, there was considerable delay in sending the
registered FIR (Ex.P9) and other documents to the concerned Magistrate.
The death intimation purposefully not produced since it would reveal the time
when the body was received in the Government Hospital, Dharmapuri. The
specific case is that the deceased was indiscriminately attacked all over the
body by the accused, due to which the deceased had abrasions, but in MO3
to MO5 no blood stain found. PW12 admitted that for this reason only, MO3
to MO5 were not sent to serologist. Thus, the deceased was attacked by all
the accused, due to which, he died, is false.
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
(vi)Further submitted that PW2 categorically states about usage and
damage of mobile phone and further, the scene of occurrence was
videographed by PW12, which is not marked as Material Object. The trial
Court came to its own conclusion that the occurrence though took place
during dark night hours, the witnesses could have seen the occurrence with
the aid of moon light. In this case, there is no evidence to come to such
conclusion. Hence, the conclusion arrived by the trial Court is not proper. In
view of the above, despite the prosecution failed to prove the case beyond all
reasonable doubt, the trial Court convicted and sentenced the appellants
without evidence and proper reason. Hence, the judgment of the trial Court,
dated 15.12.2015 to be set aside.
7.In order to substantiate his arguments, the learned counsel for the
appellants relied on the following citations:-
● Irul Versus State reported in 2007 Crl.L.J 1139 for the point that non
examination of persons nearer to the scene of occurrence. Draw
adverse inference against the case of the prosecution under Section
114(g) of the Indian Evidence Act.
● Nadimuthu & others Versus State by Public Prosecutor reported in
1997 (2) MWN (Crl.) 149 for the point that the delay in registering
First Information Report and delay in sending the FIR to the Court.
The persons who have been residing near the scene of occurrence were
not examined. Non examination of neighbours throws cloud on the
case of the prosecution.
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
● Sathiyaraj & others Versus State reported in CDJ 2019 MHC 3517
for the point that PW1 has not given any specific overtact of the
accused about the injuries on the deceased. Cited a witnesses to the
occurrence, have not bee examined in this case. Though the compliant
was received at about 01.00 a.m., on 14.09.2013, the same came to the
registered at about 03.30 a.m., and thereafter, it was sent to the Court
only at 10.30 a.m. Though the hospital as well as the Court are
nearby, no reason was given for the delay. None of the independent
witnesses have been examined at the scene of occurrence to
corroborate the evidence of PW1. This case right from the lodging of
complaint (Ex.P1) and thereafter, preparation of other documents are
doubtful and in the absence of corroboration, the version of PW1 is not
in conformity with the medical evidence. Thus, the evidence of PW1
does not inspire confidence to be acted upon.
● Krishnamoorthy Versus State Express FIR reported in CDJ 2019
MHC 5727 for the point that the incident had taken place at about
10.45 p.m., on 07.04.2011 and the complaint itself was given only on
08.04.2011 at about 01.00 a.m., and the Express FIR had reached the
Court on 08.04.2011 at 6.00 a.m. There is absolutely no explanation
as to why it took nearly 2 hours and 15 minutes for the complaint to be
given in this case.
● Satish Kumar & another Versus State reported in CDJ 2020 SC 781
for the point that the Investigating Officer has given contradictory
statement as that of statement of PW1 as well as PW2. The statements
of the witnesses do not appear to be trustworthy so as to maintain
conviction of the appellants. The evidence of the prosecution does not
inspire confidence. The entire prosecution case is based upon the
telephone call but no call details have been produced to verify the
correctness of the telephone call. As per the Investigating Officer,
there was no verification made in pursuance of the phone call received.
● Malappa Versus State reported in CDJ 2021 SC 329 for the point
that the prosecution story seeking to establish commission of the
offence by circumstantial evidence of discovery of the weapon of
assault fails.
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
● Venga Gounder Versus State reported in CDJ 2022 MHC 4544 for
the point that the discrepancies regarding the time of occurrence and
doubt about the person who attacked PW1. The failure of the
prosecution to explain about non recovery of the weapon.
8.The learned Government Advocate (Crl. Side) appearing for the
respondent Police submitted that PW1 is the defacto complainant and
brother-in-law of the deceased, who lodged the complaint (Ex.P1) with
PW10 on 04.01.2015 at about 06.30 a.m. On receipt of the complaint
(Ex.P1), FIR (Ex.P9) was registered by the PW10. The copy of Ex.P9 was
sent to the concerned Court and to the higher officials. PW12, the
Investigating Officer on receipt of Ex.P9 at about 07.30 a.m., took up the
investigation, visited the scene of occurrence, prepared Observation Mahazar
(Ex.P2), Rough Sketch (Ex.P15), examined the witnesses present in the
scene of occurrence, conducted inquest on the body of the deceased between
09.30 a.m., and 12.30 p.m., handed over the body to PW6, the Constable for
Postmortem. Thereafter, PW6 produced the body to PW9, the Postmortem
Doctor, who conducted autopsy and issued Postmortem Certificate (Ex.P16).
From the medical evidence, it is seen that the deceased was brutally attacked
all over his body, due to which, abrasions and contusion found in the body.
The medical evidence is in conformity to the case of the prosecution. PW11
is the Judicial Magistrate, before whom PW1 to PW3 gave statement under
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
Section 164 Cr.P.C. PW12, the Investigating Officer clearly stated about the
investigation conducted by him. Getting initial oral cryptic information,
would not amount to commencement of investigation. Only after receipt of
the complaint (Ex.P1) with its particulars, the Investigating Officer/PW12
visited the scene of occurrence and conducted investigation. The trial Court
on the evidence of the witnesses and materials produced, rightly convicted the
appellants. The points raised by the appellants were raised during trial,
which were rejected by the trial Court giving valid reason. Hence, he prayed
for dismissal of the appeal confirming the judgment of the trial Court, dated
15.12.2015.
9.This Court considered the rival submissions and perused the
materials available on record.
10.In this case, three persons are projected as eye witnesses viz., PW1
to PW3, of whom PW3 did not support the case of the prosecution. PW1
and PW2 are the brother-in-law and sister of the deceased. PW1 in his
evidence not stated about the presence of PW2 along with him either while
going to the scene of occurrence or to the Police Station while lodging the
complaint. PW1 and PW2 stated about the illicit relationship between the
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
deceased and A2 for the past ten years and thereafter, for the past one year,
no relationship. On the fateful day i.e., on 03.01.2015, the deceased went to
the house of A1 by bike (MO1) at about 11.00 p.m., he knocked the door,
which infuriated A1 and A2 and they questioned the deceased and started to
attack the deceased with hands. Thereafter, A3 to A5, the relatives of A1 &
A2 joined them and attacked and kicked the deceased physically, no arms or
any weapon used.
11.In this case, PW1's admission is that he stays in his house which is
three kilometer away by road from the filed of A1. It is less than one
kilometer by walk through the fields. The distance between both their houses
are quite far away. PW1 stated that he and his wife/PW2 were keeping a
watch over their field and staying there. PW1 admitted that on the day, there
was no huddling together of sheep or cow in the field, hence, there was no
necessity or reason for PW1 and PW2 to be in there field. Added to it, PW1
admitted that the field and house of the accused are not visible due to
topography and bushes. In such case, PW1 and his wife/PW2 seeing Tata
Ace vehicle (MO2) of A3 entering the house of A1, thereafter, hearing the
commotion and shout of the attack is doubtful. It is projected as though PW1
to PW3 went to the scene of occurrence, witnessed the assault by A1 to A5.
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
But PW3 not supported the case of the prosecution. PW2 evidence is
contrary to PW1 and now, the evidence of PW1 is only available. On careful
scrutiny, the presence of PW1 is highly doubtful.
12.PW1 admitted that he went to the respondent Police Station
between 03.00 a.m., and 03.30 a.m., gave oral complaint which was recorded
by the Inspector of Police recording between 04.00 a.m., and 04.30 a.m. He
confirms that he does not know to read or write Tamil. PW10, the Sub
Inspector of Police, who received the complaint (Ex.P1), registered FIR
(Ex.P9) is categorical that that a written complaint was handed over by PW1,
which is a contradictory statement. Further, the complaint (Ex.P1) is a one
with particulars. There is no recording to show about the oral complaint
recorded, read over to PW1 and admitted to be correct and thereafter, PW1
signed the complaint (Ex.P1). In the absence of the same, no credence can be
given to Ex.P1. Added to it, contradictory version are given by PW1 and
PW10. PW1 and PW2 confirmed about the Inspector of Police along with
four or five Police personnels reached the scene of occurrence at about 02.00
a.m., and made arrangements for shifting the body to the hospital by
ambulance, further the Inspector of Police asked five persons namely
Krishnan, Saroja, Ragupathy and Subramani, the adjacent land owners, to
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
come to the Police Station for enquiry. Strangely, these persons not
examined as witness.
13.PW10 admitted that prior to the receipt of Ex.P1, the information
about the occurrence was received through phone and he informed the same
to his superiors including PW12. PW1 confirmed that there is no electricity
and no source of light in his house as well in the house of A1. The
occurrence took place at the dead of the night at about 11.00 p.m. The trial
Court substituting by its own version that the occurrence might have been
witnessed in the moon light, is not proper in the absence of any evidence and
materials. Lakshmi, the wife of the deceased was with PW1 in the Police
Station from early morning on 04.01.2015 up to 02.00 p.m. Thereafter, all
the family members went to Dharmapuri Hospital and the said Lakshmi was
shown as inquest witness along with the mother and brother of the deceased
and others. None were examined as witness in this case. The inquest is held
between 09.30 a.m., and 12.30 p.m., on 04.01.2015. PW6, the body
constable stated that the body was handed over to him at about 12.45 p.m.
Thereafter, he took the body to the Government Hospital, Dharmapuri,
handed over the same to PW9, the Postmortem Doctor. From the
Postmortem report (Ex.P9), it is seen that the body was first seen by PW9 at
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
about 02.15 p.m., on 04.01.2015 wherein it is recorded that rigor mortis
present all over the body. This confirmed that the time projected by the
prosecution about the inquest and the time of death becomes doubtful.
14.In this case, except PW3, no independent witness examined by the
prosecution. PW3 not supported the case of the prosecution. The arrest of
the accused on 04.01.2015, at about 03.00 p.m., and on confession of A1,
recovery of MO2 is shown. It is not the case that MO2 was concealed and
hidden and thereafter, recovered. It was available in the scene of occurrence
which is recorded in the complaint (Ex.P1) and FIR (Ex.P9). PW5, VAO
confirmed the same. Hence, the confession statement is of no consequence.
Admittedly, in this case, no inquest witness examined. Added to it, the Form-
95 for MO1 to MO5 though said to have been prepared on 05.01.2015, the
same had been produced without the property. Hence, it was returned and
thereafter, it was again produced on 02.02.2015 without property. It is found
that on 16.03.2015, it is recorded in Form-95 that the property does not
confirm to its description and finally, it was represented only on 20.03.2015
with property and the case property number was assigned. The delay in
production of properties is of concern. Added to it, the specific case of the
prosecution is that the deceased was wearing MO3 to MO5 and he was
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
indiscriminately kicked and thrashed by the appellants all over his body by
hands and chappels. But, MO3 to MO5 were not forwarded to serologist.
PW12, the Investigation officer gives reason that since there was no blood
stains, he had not forwarded the same, which is improper. It is not out of
place to mention that there are eleven abrasions all over the body of the
deceased. Further, there is delay in sending the statement of witnesses and
documents to the Court.
15.PW1 is categorical that the Inspector of Police and his team visited
the scene of occurrence at about 02.00 a.m., on 04.01.2015 and they
informed ambulance service and thereafter, the body of the deceased was
shifted from the scene of occurrence. The Deputy Superintendent of Police
also visited the scene of occurrence. This all happened much before lodging
of complaint. PW1 confirmed that A2 to A5 were taken to the Police Station
from the scene of occurrence, which is corroborated by PW2. PW4, the
resident of the village reiterated about deceased taken in Ambulance on the
same night. PW10, the Sub Inspector of Police admitted after receipt of
telephonic message about the incident during night hours on 03.01.2015, he
informed the same to PW12. He also confirmed that the Police men had gone
to the scene of occurrence on the same night and the body of the deceased
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
removed to the hospital even prior to receipt of the complaint (Ex.P1) and
registration of FIR (Ex.P9). PW1 confirmed that it was PW3 who informed
the Police about the incident on the same night through phone. This prior
information withheld by the prosecution instead projected a case as though
after the receipt of complaint on 04.01.2015 at about 06.30 a.m., registered
FIR (Ex.P9) and PW12 was informed by 07.30 a.m., who visited the scene of
occurrence by 08.00 a.m., investigated the case, conducted inquest between
09.30 a.m., and 12.30 p.m., on 04.01.2015. PW1 admitted that his sister-in-
law and wife of the deceased Lakshmi was present along with him in the
Police Station throughout the night on 03.01.2015 till afternoon on
04.01.2015. From the Police Station directly, they had gone to Dharmapuri
hospital earlier, Pachaiammal and Sakthivel, the mother and brother of the
deceased reached Dharmapuri hospital. They are also projected as witness to
the inquest present in the scene of occurrence during the relevant time.
16.From the evidence of PW6, the Constable, it is seen that the body
was handed over to him at about 12.45 p.m., on 04.01.2015 and he produced
the body to PW9, Postmortem Doctor at about 02.30 p.m. PW6 confirmed
that the requisition for Postmortem (Ex.P7) was given to him during that
time. PW6 confirmed that the Police Station is at a distance of 15 kilometers
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
from the scene of occurrence and from there, it is 35 kilometers to the
Government Hospital, Dharmapuri. PW7 confirmed that from the scene of
occurrence, the Judicial Magistrate Court, Palacode is around 20 kilometers.
PW10, the Sub Inspector of Police confirmed the body was moved on the
same night even prior to registration of the case.
17.Thus, from the evidence of PW1, PW2, PW4 and PW10, it is
proved that the body of the deceased removed from the scene of occurrence
on 04.01.2015 at about 02.00 a.m. by ambulance. Strangely, the Inquest
Report (Ex.P16), it is recorded between 09.30 a.m., and 12.30 p.m., on
04.01.2015 and inquest conducted. No inquest witness examined during
trial. On the other hand, the evidence is that some of the inquest witnesses
were either present in the Police Station or in the hospital at the time of
inquest. Hence, the inquest becomes doubtful. PW12 confirms that the
Inquest Report (Ex.P16) is typed in a computer and print out taken. He
admitted that no laptop or computer was taken to the scene of occurrence and
the same was typed in the Police Station and print out taken. The
explanation given by PW12 is not acceptable. Hence, Ex.P16 has to be
rejected in toto. Though PW11, the Judicial Magistrate was examined and
the statement under Section 164 of Cr.P.C., (Exs.P12 to P14) recorded, it is
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
not as per law. PW11 admitted that Exs.P12 to P14 has been recorded
without following the procedure under Section 164(5) Cr.P.C.
18.PW1 confirms that A2 to A5 and some of the villagers were taken
to the Police Station on the same night by PW12. Hence, the arrest projected
by the prosecution becomes doubtful. Added to it, PW2 stated that it was A4
and A5 who brought the Police to the scene of occurrence which belies
normal conduct. The presence and evidence of PW1 and PW2 are highly
doubtful, motivated with infirmities and that does not inspire confidence to
sustain the judgment of the trial Court.
19.Thus, on the facts and circumstances of the case, the prosecution
has miserably failed to prove the case beyond all reasonable doubt.
20.In the result, the appeals are allowed setting aside the judgment of
the trial Court, dated 15.12.2015 in S.C.No.51 of 2015. The
appellants/accused are acquitted from all the charges levelled against them.
The bail bonds, if any, executed shall stand cancelled. Fine amount, if any,
paid, shall be refunded to them.
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
06.01.2023
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
To
1.The Additional Sessions Court,
Dharmapuri.
2.The Inspector of Police,
Marandadhalli Police Station,
Dharmapuri.
3.The Public Prosecutor,
High Court, Madras.
M.NIRMAL KUMAR.J.,
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.77 & 380 of 2016
vv2
C.A.Nos.77 & 380 of 2016
06.01.2023
https://www.mhc.tn.gov.in/judis
