R. Balasubramanian, J.
1. The appellant in this appeal stands convicted in S.C. No. 35/2003 on the file of the Additional Court of Sessions (Fast Track Court), Kallakurichi for the offence under Section 302, I.P.C., for which, he stands sentenced to undergo imprisonment for life. Therefore, he is before this Court in this appeal questioning his conviction. Heard Mr. N. Doraisamy learned Counsel appearing for the appellant and Mr. N. R. Elango learned Additional Public Prosecutor appearing for the State.
2. The prosecution case is that at about 10.00 p.m. on 4-9-2002, the accused accosted P.W.2; compelled her to satisfy his sexual lust; the deceased by name Hariram came to her aid and was escorting her to safety and enraged at that, the accused forcibly took Hariram to a nearby area where, he killed him by hitting him on his chest twice or thrice with la big stone and therefore punishable for the offence referred to earlier. The prosecution examined P.Ws. 1 to 17, besides marking Exs. P.1 to P.15; P.22 to P.25 and M.Os. 1 to 11. C.Ws. 1 to 4 were examined as Court witnesses and Exs.C.16 to C.21 came to be marked through them. The defence neither let in any oral evidence nor documentary evidence.
3. P.W. 1 is the wife of the deceased, who was a tailor by profession. Everyday, her husband used to go to Vellimalai to do tailoring work and return to the village. On a Wednesday in the 11th month of a year, her husband left to attend the betrothal function of one Palanisamy, an employee under him, at Nochimedu; till about 9.00 p.m. on that night, her husband did not return home; on the next day, she went in search of him and she did not find him anywhere The residents of Vellimalai were talking that there is a male dead body in the waterway at Ramakuthi, which made her to go to that place. She identified that dead body as that of her husband. She found that her husband had Injuries on his head, besides a granite stone kept on his chest. She returned to Vellimalai and with the help of a literate, she got the complaint reduced into writing. The scribe read over that complaint to her and finding what she told him are reflected in the said complaint, she put her signature in it. She went to the police station and gave it. On the next day, she was examined by the police. Police took her to the place where the dead body was lying. A number of people went to the crime scene. At that time P.Ws.2 and 3 told her 'that the accused tried to misbehave with P.W.2 on the previous night; P.W. 1's husband escorted P.W.2 to safety; in the course of their move, the accused fisted P.W.1's husband; dragged him to a waterway at Ramakuthi and by pressing his chest with a big stone, killed him'. She identified the dead body.
4. P.W. 16 is the Sub-Inspector of Police. At 11.30 p.m. on 5-9-2002, P.W. 1 appeared before him and gave the complaint, which he registered as Ex.P. 1 in his police station Crime No. 133/2002 under Section 302, I.P.C. Ex.P. 15 is the printed first information report prepared by him. He sent the express records to the Court as well as to the higher officials. P.W. 15 is the police constable in the Investigating Police Station. At 6.00 a.m. on 6-9-2002, he collected the express records from P.W. 16 and handed over the same to the Court at Kallakurichi as well as to the higher officials. Pursuant to the Court's directions, he carried the material objects to the laboratory for examination and report. P.W.17 is the Investigating Officer. At 4.30 a.m. on 6-9-2002 when he was in the police station at Kachirapalayam (the complaint was registered at Kariyalure police station), P.W. 15 appeared before him and gave the express records. P.W. 17 accordingly took up the investigation. He sent an information to the scientific experts' office at Villupuram and to the sniffer dog squad and then in the company of P.W. 16, and others, he reached the crime scene. There in the presence of P.W.9 and another, he prepared Ex.P2, the observation mahazar and Ex.P22, the rough sketch. He caused photographs of the scene of occurrence to be taken. P.W. 11 is the Photographer, who took photographs of the crime scene from different angles. M.Os.10 and 11 series are the photographs and negatives. At 8.15 a.m. on that day, P.W.17, in the presence of P.W.9 and another, recovered a granite stone having a circumference of 87 cms, which was kept on the dead body. M.O.1 is the said granite stone, which came to be recovered in the presence of P.W.9 and another under Ex.P.3/ mahazar. P.W. 17 examined P.Ws. 1, 2, 3 and others by recording their statements. Then he conducted inquest over the dead body in the presence of panchayatdars and witnesses and prepared Ex. P. 23, the Inquest report. He then sent the dead body along with Ex. P. 24 (requisition) to the hospital for conducting post mortem. At 1.15 p.m. on the same day, P.W.17 recovered from the crime scene blood stained earth and sample earth (M.Os.3 and 4) under Ex.P.4 attested by P.W.9 and another. At 2.45 p.m. on 6-9-2002, from a place west of the waterway at Ramakuthl, P.W. 17 recovered a light yellow colour right foot chappal and white paper containing a written material as 'Mathur Kuppusamy' (M.C.2) in the presence of P.W.9 and another under Ex.P.5. P.W.9 deposed in Court that he witnessed the preparation of Ex.P.2, the observation mahazar; recovery of the article under Ex.P.3 and recovery of M.Os.3 and 4 under Ex.P.4. He also witnessed the recovery of the chappal as referred to above (M.O.5) under Ex.P.5. besides the white paper containing a written material as spoken to by P.W.17 and marked in this case as M.O.2.
5. P.W. 11 is the police constable who accompanied the dead body along with the requisition to the hospital for post mortem. After post mortem, he handed over the dead body to the relatives. Before that, he removed the personal wearing apparels found on the dead body and handed over the same to the Investigating Officer. P.W.13 is the duty Medical Officer in the Government Hospital at Kallakurichi. At 4.30 p.m. on 6-9-2002, he did post mortem on the dead body on it's receipt along with the requisition. During post mortem, he found various symptoms as noted by him in Ex. P. 14, the post mortem report. The symptoms noted by him are as hereunder:
Appearances found at the post mortem: A body of a male lies on its back. Arms flexed. Eyes, mouth closed. Tongue protruded out. Body bloated. Strotum bloated. Peeling of skin scattered all around the body. Foul smelling odour coming from body. Maggots crawling on the head and neck. Scalp hair peeling off on touch. Blood stained discharge oozing from the right ear and both nostrils. Faecal matter coming from anus.
External Injuries : 1) A wide red contusion on the chest below the neck at central extending to both side of shoulder joint above extend to the mandible.
2) A lacerated injury over right parietal middle 3rd 4 x 2 cm to bone depth.
3) A lacerated wound over right side scalp zygoma 2 cm x 1/2 cm bone depth.
4) Abrasion in front of right ankle joint present 2 x 2 cm red colour.
5) Another injury 2 x 2 cm close to Injury No. 4.
6. Irregular abrasion both shoulder and inter scapular region of various size and shape and colour. Wounds 1, 2, 3, 4, 5, 6 are antemortem in nature.
On dissection : Injury Nos. 2, 3 underlying tissues are infllterate with blood clots, congested and ecchymosed. Injury No. 1 : Tissues under which congested and ecchymosed infllterated with blood clots. On further dissection of wound, blood clots around 400 to 500 ml found in middle and anterior mediastinum (thoracic cavity) clots extend to greater vessels of heart with fracture of central part of sternum.
Internal : Neck : On dissection muscles under which congested and ecchymosed. Larynx : congested. Lungs : congested each 450 gms. Heart: congested 300 gms. Liver : congested 1600 gms. Intestine : distended with gas. On opening, foul smelling gas emanating. Spleen : congested 100 gms. Stomach : partially digested food with liquid about 500 gms - foul smelling. Kidney : congested each 120 gms. Bladder : empty. Skull: normal. Bones intact. Meninges intact. Brain : liquified 100 ml. Hyoid bone : preserved. Following visceras are preserved for chemical analysis (1) Stomach and its contepts.
(2) Sample of intestine and contents. (3) Sample of liver and kidney. (4) Hyoid bonei (5) Saturated solution of nasal.
Based on the report from the Forensic Science Department, P. W. 13 opined that death would have occurred due to asphyxia as a result of the injuries sustained. P. W. 13 had deposed that death would have occurred 3 or 4 days prior to autopsy and with a stone like M. O. 1, if someone presses the chest of another twice or thrice, there is a possibility for death.
6. P. W. 17 was continuing his investigation. He recovered M. Os. 6 and 7 removed from the dead body and handed over to him by P. W. 14/constable, who was present during post mortem, in Form 95. He examined further witnesses by recording their statements. At 2.00 p.m. on 12-9-2002, he arrested the accused in the bus stand at Maniyarkundam in the road from Vellimalai to Karumanthurai in the presence of P. W. 10 and another and examined him. At that the time the accused gave a voluntary confession statement, the admissible portion of which is Ex. P. 25. By giving change dress to him, the apparels owned by him were recovered. Pursuant to Ex. P. 25, a light yellow colour left foot chappal came to be recovered under a mahazar in the presence of P. W. 10 and another. The arrested accused and the incriminating objects were brought to the police station and the accused was sent for judicial remand. The case properties were sent to the laboratory. P.W. 10 had deposed about the arrest of the accused; his examination and the recovery as spoken to by P. W. 17. M. Os. 6, 7 and 8 are the personal wearing apparels of the deceased, which were recovered. M.O.9 is the left foot slipper recovered under Ex. P. 7. P. W. 17 sent the case properties to the Court with a requisition to subject the same for chemical examination. P. W. 12 is the Magisterial Clerk, who speaks about the receipt of the case properties along with Ex. P. 8 (requisition) submitted by the Investigating Officer. As an enclosure to Ex. P. 9, the Court's letter, the case properties were sent to the laboratory. Ex. P. 10 is another requisition given by the Investigating Officer to subject the case properties covered under that letter for chemical examination. As an enclosure to Ex. P. 11, the case properties were sent to the laboratory. Ex, P. 12 is the third requisition given by the Investigating Officer to have the foot prints of the accused taken. Ex. P. 13 is the Court's order to take the foot prints of the accused. Accordingly, the Investigating Officer had taken the foot prints of the accused.
7. P. W. 2 would state that after visiting her alling relative, she was returning home at about 9.00 p.m. in the 11th month of a year, As she was nearing the waterway at Ramakuthi, the accused appeared there and hugged her. to have his sexual pleasure satisfied. He called her for a sexual intercourse, which made P. W. 2 to shout. On hearing her call, the deceased came to the scene and with the help of the battery light, which; he had, he escorted her to her house. The accused was accosting her. Then the accused caught hold of the chest of Hariram (since deceased) and fisted him on his nose, which made Hariram to fall down. Then the accused forcibly, dragged him by holding his shirt to a nearby waterway at Ramakuthi, where, picking up a stone available there, the accused hit on the chest of Hariram thrice stating that he must die with that. M. O. 1 is the stone used by the accused. Then the accused left the stone on the chest of Hariram P.W. 2 shouted. On hearing that, P. W. 3 (her brother-in-law's son) came running with a torch light. With the help of the torch light, P. We. 2 and 3 neared the place where Hariram was attacked. The accused criminally intimidated P. Ws. 2 and 3 that if they disclose the crime, they would also be killed. Out of fear, P. Ws. 2 and 3 went home. Police examined her on the next day and she disclosed to them what she saw. P. W. 3 would depose that he knows the accused, who is a resident of Velllmalal, where P. W. 3 is also residing. He also knows P.Ws. 1 and 2 as they are the residents of the same village. P. W. 2 is his aunt, having married his junior paternal uncle. On 4-9-2002, P. W. 3, the deceased and others went to the betrothal function of Palaniswamy, employed in the shop of Hariram. After the betrothal function, everyone went to their respective shops and P. W. 3 also went to his shop. Normally, P. W. 3 used to close the shop at 8.00 p.m. On that night, he went home and then took his bed. Since he had food outside that day, he was having some problem in the stomach. Therefore he came out with the torch light and at that time he noticed two persons were involved in an assault. Noticing that the sound is from the nearby cattle shed, he proceeded towards that place. He saw P. W. 2 standing In the harvested land. He switched on the torch light and found one person pulling another person. P. W. 3 asked P. W. 2 as to what it is about, for which, P. W. 2 disclosed as to what happened on that night as spoken to by her in Court. He also would state that the accused threatened him also with dire consequences, as a result of which, he and P. W. 2, out of fear, went home. On the next day, he claims to have told about the crime to some people but he does not know their names. He identified M. O. 1 as the weapon used by the accused in committing the crime.
8. P. W. 4 is the younger brother of the deceased. He is not an eye witness to the occurrence. Since his brother did not return home on 4-9-2002, the family members sent P. W. 1 to find out the whereabouts of her husband (since deceased). P. W. 5, at 4.00 p.m. on the next day, informed him that near the waterway at Ramakuthi, his brother is lying dead. He went to that place along with others and observed the dead body. He noticed M. O. 1 kept on the chest of his brother. His sister-in-law (P. W. 1) gave a complaint to the police on the next day. P. W. 5 would only state that on 4-9-2002, his betrothal function took place and Hariram (since deceased) attended the function. On 5-9-2002, residents of Vellimalai were talking that there is a dead body of a male in the waterway at Ramakuthi. Everyone went to see the dead body and he also went. He found it to be the dead body of Hariram and accordingly, he went to his village and told what he saw. P. W. 6 is a resident of Mathur. P. W. 7 asked him whether there are any agricultural labourer to irrigate his lands at Vellimalai? P. W. 6 offered to work and he went along with another person. At 12.00 noon in the 11th month of a year, they were irrigating the lands. At 5.30 p.m., they left the lands to proceed to Vellimalai. They were walking through the lands of the accused at that time. They noticed the accused standing near the bridge at Vellimalai and the accused asked him a sum of Rs. 500/-. P. W. 6 expressed his inability to pay the money, for which, the accused insisted that he must give. Once again, P. W. 6 expressed his inability. Then the accused asked him to give his address, which he got written with the help of a nearby shop owner. P. W. 7 is a resident of Vellimalai and he approached P. W. 6 whether he could provide labourers to attend to irrigation work. P. W. 6 offered and accordingly, he came with another person. All the three went to the lands of P. W. 7 and after completing the work, they returned home. In the grocery shop of Ramalirigam, the accused was standing. The accused asked P. W. 6 for a sum of Rs. 500/- and P. W. 6 stated that he cannot pay. However the accused compelled him to give, money to him, for which, P. W. 6 said that if the accused comes the next day, he would give him the money. Then the accused, with the help of Ramalingam, took the address of P. W. 6 in a paper. At 11.00 p.m. on that night, the accused wanted a light from him stating that one of his chappals is missing. When P. W. 7 told him that he did not have any light, the accused left. P. W. 8 is the person, who had written the address of P. W. 6 in the paper as requested by the accused. He had also given evidence on the same lines as spoken to by P. Ws. 6 and 7 regarding the demand made by the accused for money and the answer given by P. W. 6.
9. P. W. 17 was continuing his investigation. He sent the viscera and the hyoid bone to the Court with a requisition to subject the same for chemical examination. He sent the rubber chappal recovered on 14-9-2002 from opposite to the house of the mother of the accused along with the foot prints taken by him from the prison to the laboratory for comparison and report. After completing all the other legal formalities, he filed the final report in Court against the accused for the offence referred to earlier. When the accused was questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to facts. Neither oral nor documentary evidence was brought before Court at his instance. At the instance of the Court, four witnesses were examined as C. Ws. 1 to 4. C. W. 1 is a scientific expert in the scientific laboratory at Vellupuram. He had lifted the foot prints of the accused in the prison pursuant to Court's order. He handed over those foot prints to the Investigating Officer. Ex. P. 13 is the order passed by the Judicial Magistrate in that regard and Ex. P. 16 is the ink impression of the foot prints of the accused lifted by him. Ex. P. 16 consists of three ink impressions of the right foot and three impressions of the left foot. C. W. 2 is the Assistant Director in the Forensic Laboratory. He examined M. Section 1, 3, 4, 6 and 7 sent to him pursuant to Ex. P. 9 (Court's order). Ex. P. 17 is the report submitted by him. He also examined the viscera of the deceased. Ex. P. 18 is his report, which does not disclose either poison or alcohol in the viscera. C. W. 3 is the Assistant Director in the Forensic Laboratory. She examined a white colour right foot and left foot chappals having yellow strap. No blood was detected in those two chappals. Ex. P. 19 is her report. Ex. P. 20 is the serologist's report, which shows that in M. Os. 1, 4 and 5, human blood was detected; but however, grouping was not possible and in M. O. 2. there was disintegration of blood. C. W. 4 is another scientific-expert in the Forensic Laboratory. She examined the ink impressions of the right and left fort of the accused and found that those impressions are tallying with the impressions found in the two chappals. Ex. P. 21 is her report. Ex. P. 13 is the requisition sent by the Court.
10. Mr. N. Doraisamy, learned Counsel appearing for the appellant would contend that P. W. 2 alone is examined as an eye witness to the occurrence. She came to be examined for the first time only on 6-9-2002. So also P. W. 3, who had deposed that on reaching the crime scene the accused intimidated him as well, was also examined only on 6-9-2002. If really P. W. 2 had seen the crime, then, though she might have been under fear on the occurrence day itself namely, on 4-9-2002, especially when the occurrence is shown to have taken place around 9.00 p.m., she would not have failed to disclose the crime to others at least on the next day morning. In fact, P. W. 3 would state that he told the villagers on the next day itself as to what transpired on the previous night. Under these circumstances, this Court must consider the evidence of P. W. 1, who had given the complaint at 11.30 p.m. on 5-9-2002, almost 24 hours after the crime, stating that he is suspecting the involvement of one Ramasamy and Pitchan. The very fact that the name of the accused is not mentioned in Ex. P. 1 throws a substantial light regarding the presence of P. W. 2 at the scene of occurrence. In other words, the prosecution case is that, P. W. 2 told about the entire incident on the night of 4-9-2002 itself to P. W. 3, who in turn disclosed it to the villagers on the next day morning. Therefore absence of the name of the accused in Ex. P. 1 but on the other hand mentioning the names of two other persons as the suspected accused, would definitely eliminate the presence of P. Ws. 2 and 3 as eye witnesses to the occurrence. Learned Counsel, by taking us through the evidence of the doctor, who did post mortem, would contend that the said evidence shows that death would have occurred three or four days prior to the occurrence and it definitely eliminates the presence of P. Ws. 2 and 3 as eye witnesses to the occurrence. Though C. Ws. 1 to 4 and Exs. C. 16 to C. 21 may be incriminating in nature against the accused, yet, the evidence of C. Ws. 1 to 4 and Exs. C. 16 to C. 21 had not been put to the accused at all when he was questioned under Section 313 of the Code of Criminal Procedure and therefore those incriminating materials cannot be looked into at all for any purpose. We heard the learned Additional Public Prosecutor appearing for the State on the above points.
11. Having regard to the submissions made by the learned Counsel on either side, we went through the entire records. P. W. 13 is the doctor, who did post mortem on the dead body and Ex. P. 14 is the post mortem report. Medical evidence definitely shows that death is due to asphyxia as result of the injuries sustained. P. W. 13 commenced the post mortem at 4.30 p.m. on 6-9-2002. The post mortem report and his oral evidence show that death would have occurred three or four days prior to the post mortem. This witness had not been further examined by the State on the above evidence. Post mortem report shows that the body was bloated; scrotums were bloated; peeling of skin scattered all round the body; maggots were crawling on the head and neck and scalp hair was peeling off on touch. Therefore, the above referred to symptoms are definitely in support of the conclusion arrived at by P. W. 13 that death would have occurred three or four days prior to post mortem. Post mortem was commenced at 4.30 p.m. on 6-9-2002 and going by the time of death as spoken to by P. W. 13, death would have occurred in any event before 4-9-2002 and not definitely on the night of 4-9-2002. Of course, as already stated, medical evidence establishes beyond doubt that death is due to homicidal violence.
12. The prosecution case is that it is the accused and accused alone, who committed the murder and for this purpose, they have examined P. W. 2 as an eye witness to the occurrence and P. W. 3. to speak about the presence of the accused at the crime scene when P. W. 2 was there and the accused criminally intimidating both P.Ws. 2 and 3 to keep quiet. We have already extracted the evidence of P. Ws. 2 and 3. If really P. W. 2 is an eye witness to the occurrence as spoken to by her, then, we fail to understand as to why she came to be examined for the first time only on 6-9-2002, on which date, P. W. 17 commenced the investigation. According to P. W. 2, she was fully aware that Hariram died immediately after the occurrence on 4-9-2002. She had admitted in her evidence in cross that at 6.00 a.m. the following morning, she went to see the dead body and at that time, 50 or 60 persons were there, which included P. W. 9 and the village menial and that P. W. 9 sent information to the police station. That information stated to have been sent by P. W. 9 to the police is not forthcoming. P. W. 2 is very firm and positive that at 10.00 a.m. on the morning following the occurrence day, police examined her. But the case projected by the prosecution now is that, at 11.30 p.m. on 5-9-2002, P. W. 1 lodged the complaint and P. W. 17 commenced the investigation only at 6.00 a.m. on 6-9-2002. P. W. 3, as already noted, had admitted that on the next day morning itself he disclosed the details of the crime to a few persons in the village but he does not know their names. Therefore the fact remains that on the morning of 5-9-2002 itself, P. W. 3 had disclosed to the villagers what he saw on the previous day. If we analyse the evidence of P. Ws. 2 and 3 from the above angle, in the context of the oral evidence of P. W. l, then, we really fail to understand as to why P. W. 1, who could have, by the time she chose to give the complaint, definitely got the Information about the involvement of the present accused in murdering her husband, did not implicate the accused at all in Ex. P. 1 but on the other hand, mentions the names of two other persons as possible suspects. Therefore, having a totality of the materials available in the evidence of P. Ws. 1 to 3, we are of the considered opinion that it is not possible to act on the evidence of P. Ws. 2 and 3 as a safe piece of evidence. As we have already noted, as per the medical evidence, death would have occurred definitely prior to the night of 4-9-2002.
13. It is true that foot impressions of the accused were lifted as referred to earlier in this judgment. Those foot impressions lifted are found to tally with the impressions found In the chappals, which, according to the prosecution, belong to the accused. One chappal is shown to have been recovered west of the waterway where the dead body was found. The other chappal is shown to have been recovered from opposite to the house of the mother of the accused. When we have disbelieved the evidence of P. Ws. 2 and 3, in our considered opinion, recovery of one chappal stated to be belonging to the accused from near the scene of occurrence, has no, relevance at all. The possibility of the accused losing his chappal on his way to the village cannot be totally ignored. In any event, as brought to our notice, the evidence of C. Ws. 1 to 4 and Exs. C. 16 to C.21 had not been put to the accused at all when he was questioned under Section 313 of the Code of Criminal Procedure. The evidence of C. Ws. 1 to 4 and Exs. C. 16 to C. 21 are definitely incriminating in nature, on the face of it. Therefore a duty is cast upon the Court to put those materials to the accused when he was questioned under Section 313 of the Code so that he would be in a position to explain those incriminating circumstances. Since that has not been done, we have no doubt at all that the accused had been considerably prejudiced on account of such failure as indicated above committed by the Court. Under these circumstances, we have no hesitation at all to conclude that the evidence of the Court witnesses and the exhibits marked through them cannot be looked into at all. If these materials are excluded, then, we have no doubt at all that the conviction of the accused for the offence under Section 302, I. P. C. cannot be legally sustained.
14. For all the reasons stated above, we find that there is a substantial doubt in the prosecution case and accordingly, giving the benefit of that doubt to the accused, he is acquitted of the offence for which he was charged, tried and convicted, by setting aside the judgment under challenge. The appeal stands allowed accordingly. The accused shall be set at liberty forthwith, if he is not required in connection with any other case.