Hari Krishnan Vs. State - Court Judgment

SooperKanoon Citationsooperkanoon.com/1167744
CourtChennai High Court
Decided OnAug-30-2013
JudgeV.DHANAPALAN
AppellantHari Krishnan
RespondentState
Excerpt:
in the high court of judicature at madras dated :30. 08.2013 coram the hon'ble mr.justice v.dhanapalan and the hon'ble mr.justice c.t.selvam criminal appeal no.29 of 2012 hari krishnan ... appellant/single accused -vs- state rep. by inspector of police melpatti police station vellore district (crime no.194 of 2009) ... respondent/complainant criminal appeal filed under section 374(2) of criminal procedure code against the conviction and sentence imposed upon him by the learned additional district sessions judge, fast track court, vellore district in s.c.no.296 of 2010 dated 30.11.2011 for the offence under section 302 ipc and sentenced to life imprisonment and fine of rs.1000/- in default three months rigours imprisonment. for appellant : mr.g.vinodh kumar for respondent : mr.v.m.r.rajentren additional public prosecutor judgment (judgment of the court was made by v.dhanapalan,j.,) the appellant in this appeal stands convicted in s.c.no.296 of 2010 on the file of the additional district and sessions judge (fast track court), vellore on 30.11.2011 for the offence under section 302 ipc and sentenced to undergo imprisonment for life and to pay a fine of rs.1,000/-, in default to undergo rigours imprisonment for three months. therefore, he is before this court in this appeal questioning the correctness and sustainability of the judgment of the trial court dated 30.11.2001 both in respect of conviction as well as sentence.2. the case of the prosecution is as follows: pw1-shahidha begam, the mother of the deceased was residing at koothandavar nagar with her family. she is the second wife of pw5-ejazz. she had two sons and three daughters. earlier, pw1 and her family were residing at kadambur wherein the accused was also residing. pw2-qamar thaj is pw1's elder daughter with whom the accused had love affair. pw2 was working in a shoe company and the accused forced her to love him. pw2 informed the same to her mother pw1, who in turn informed the same to her brother pw4-nazeer. on the advise given by pw4, pw1 shifted her residence from kadambur to koothandavar nagar. on 09.09.2009, when pw2 was at her work place, the accused went to pw1's house and insisted her to give her daughter pw2 in marriage to him. however, pw1 had stated that since both are belonging to different religion, she was not interested in giving her daughter in marriage to him. the accused interrogated aggressively as to whether it is possible for her to give her daughter in marriage to him or not. even then, pw1 refused. all of a sudden, the accused took m.o1vegetable cutting knife and attempted to cut the throat of pw1 and since she moved far away, the accused cut the throat of her younger daughter aayisha, aged about 8 years, who was lying due to her ill-health. the accused also threatened pw1 with dire consequences and ran away from the scene of occurrence with m.o1 on hearing the hue and cry, pw6-kuppammal came to the scene of occurrence and saw a person running from the house of pw1 and also saw the child aayisha bleeding profusely. immediately, pw1 took her daughter aayisha to the government hospital, ambur, where pw9-dr.mushthaq had given treatment and asked the injured child as to who had caused the injury. the child pointed out the accused, who was standing there. the doctor, after seeing the accused, asked pw1 as to who was he, for which she had informed the name of the accused to the doctor. after giving first aid, the doctor referred the injured child to the government medical college hospital, vellore for treatment. pw1 had given a oral complaint to the police which is marked as ex.p1 and the same was reduced in writing on 09.09.2009 at 23.00 hours by the police officials attached to melpatti police station. on the next day, i.e., on 10.09.2009 at about 06.00 hours, the child died.3. pw1 is the mother of the deceased. the motive alleged by the prosecution is that the accused demanded pw1 to give her daughter in marriage to him and since pw1 refused, to take revenge on pw1, he attempted to cut pw1 with mo1 and since she escaped, the accused cut the throat of the deceased with an intention to cause the death of an eight years old child.4. pw2 was working in a shoe company. on hearing about the occurrence, she rushed to the government hospital, ambur and saw her sister aayisha. in her evidence, she has deposed that at the hospital, she saw her sister aayisha pointing out the accused to the doctor. it is her further statement that on the very same day, pw3 and pw4, brothers of pw1, also came to the hospital and saw the deceased child identifying the accused by showing her hands towards him. pw5, the husband of pw1, on the information given by pw1, saw his daughter, the deceased, at the hospital on the same day.5. pw9, the doctor treated the deceased in the government hospital, ambur on 09.09.2009 at 03.50 p.m. to whom pw1 has stated that her child cut her throat with a vegetable cutting knife [mo1]. at her home when she was away from the house at 14.30 hours. he found the following injuries: ".8cm long x 1cm wide full thickness incised wound with trachea slit open in front of the neck. open cut injury.". since the cut was a deep one, the child was not able to speak and when pw9 enquired her as to how she sustained such injury, the child identified a person who was standing there by pointing her fingers towards him and the doctor learnt from pw1 that the name of the person is hari. after giving first aid, pw9 issued ex.p7-accident register copy and referred the child to the government medical college hospital, vellore, for further treatment. pw9 also opined that the injury found in ex.p7 could have caused with mo1.6. pw15, the special sub-inspector of police attached to melpatti police station during the relevant point of time, has stated in his evidence that he recorded the statement of pw1 under ex.p1 on 09.09.2009 at 21.00 hours and registered a case in crime no.6/2010 for offence under section 307 ipc at 23.00 hours. ex.p.19 is the printed fir and he has forwarded the same to the higher official.7. pw16, mohan, the then inspector of police attached to pernampet police station, took up investigation and reached the place of occurrence on 10.09.2009 at 06.00 hours and in the presence of witnesses, namely pw7-murugesan and one bhoopalan, he prepared ex.p2-observation mahazar and obtained their signatures. then he prepared the rough sketch, which is marked as ex.p20. he also seized the blood stained pant-m.o.4 and blood stained tops-m.o.5 under the cover of the ex.p3-mahazar in the presence of the same witnesses. pw13, the photographer came to the place of occurrence and photographed the incident. the photographs and cd were marked as m.o7series and m.o8respectively. then the investigating officer, on receipt of the death intimation from the hospital through pw15-head constable, altered the section to one u/s.302 ipc and ex.p.21 is the altered fir, which was sent to the court concerned. he went to the government medical college hospital, vellore and held inquest on the body of the deceased in the presence of relatives and panchayatdars and prepared inquest report, ex.p22. then, pw15 sent the dead body for post-mortem along with the requisition under ex.p.8. the doctor, p.w.10 attached to the government hospital, vellore, on receipt of the requisition from the investigating officer, commenced the post-mortem at 16 00 hours on 10.09.2009 and he found the following injuries: ".external injuries: t-shaped sutured wound seen over upper part of front and both sides of neck. the horizontal arm measures 10 cms. the vertical arm measures seen. on removal of the sutures, the margin are clean cut. on further dissection, the underlying ribbon muscles of the front and left side of neck are found cut. the superficial veins of the neck also found cut on the left side of neck. trachea found sutured underlying the injury to a length of 2.5 cms. the lateral aspect of oesophagus found severed to a length of 1.5 cms. extravasation of blood seen in the surrounding soft tissue of the neck. other findings: hyoid bone: intact larynx and trachea: contained mucous froths, mucosa pale. lungs: normal in size. on cut section pale. heart: normal size, great vessels normal. coronary vessels patent. coronary ostia were normal. c/s.chambers empty. stomach:600. ml of altered blood present. mucosa pale. small intestine: contained yellowish chyme with bile stained fluid. no specific characteristic small perceived. mucosa pale large intestine: distended with gas liver, spleen, kidney: normal in size. on cut section found pale. gall pladder: contained bile pancreas: normal in size. c/s.pale bladder: empty genetalia: normal all other internal organs on cut section pale. ". ex.p.10 is the post mortem certificate wherein pw10 has opined that the deceased appeared to have died due to cut injury in the neck.8. pw16, the inspector of police proceeded with the further investigation. after search, on 11.09.2009 at 08.00 hours, he arrested the accused at koothandavar nagar bus stop near the welding workshop in the presence of pw8, the village administrative officer and govindan, village menial and the accused came forward to give a confession statement, the admissible part of which is marked as ex.p.4. pursuant to the same, he seized mo6 - jeans pant from the accused in the presence of same witnesses under the mahazar ex.p5. the accused also produced the vegetable cutting knife, m.o1 which he had concealed below the hillock in the presence of the mahazar witnesses. thereafter, the accused was sent to judicial custody and material objects were submitted to the court through form  95, marked as ex.p23. the sub-inspector of police had given a requisition to the chief judicial magistrate to record 164 statement of pws 1 to 5, pursuant to which the learned chief judicial magistrate had passed ex.p17 on 11.07.2009 and nominated judicial magistrate, sholinghur to record the statements of pws 1 to 5. then, the learned judicial magistrate, sholinghur on receipt of the proceedings from the learned chief judicial magistrate issued summons to pws 1 to 5 and the witnesses were present on 30.12.2009 and were identified by the police. the learned judicial magistrate, sholinghur recorded the statement after following the procedure and sent the entire file ex.p18 to the learned judicial magistrate, gudiyatham. on completion of the investigation, pw16, the then inspector of police, framed charges against the accused on 23.02.2012 under section 449 and 302 ipc and the matter has been committed to the sessions court for trial.9. to substantiate its case, the prosecution examined pws.1 to 16; produced documentary evidence, viz., ex.p.1 to ex.p.23 besides marking m.os.1 to 8.10. when the accused was questioned u/s.313 cr.p.c., as to the complicity of the offence, he has come forward with the version of total denial. on the side of the accused, no witness was examined nor any documentary evidence was let in.11. the trial court, on consideration of the oral and documentary evidence, found the accused guilty of the offence and convicted and sentenced him as stated above. hence, this appeal.12. mr.s.suresh, learned counsel appearing for the appellant would put forward the following contentions:- (i) the evidence of pw1 is not reliable as the same is self-contradictory. (ii) the origin of fir itself is doubtful as it is stated by pw1 that the police from melpatti police station came to the hospital at 23.00 hours and enquired her and pursuant to her oral complaint, ex.p.1 came into existence, which according to the prosecution is the original fir. but, even prior to that, pw1 has stated to the doctor-pw9 that at about 3.50 p.m. the child had cut her throat with mo1 when she was away from home. therefore, the possibility of giving the information about the occurrence to the police by the hospital authorities cannot be ruled out. hence, the earliest information given by pw1 to the doctor is suppressed by the prosecution and ex.p.1-fir is a fabricated document. in support of his contention, learned counsel for the appellant relied on the judgment of the hon'ble supreme court in raj kumar singh alias raju alias batya v. state of rajasthan reported in 2013 cri l.j.3276, wherein it has been observed as follows: ".9. we have heard both the parties at length and also gone through the oral and documentary evidence, especially the evidence of the eye witnesses pws 4, 8, 15 and 16. complainant pw4, it may be noticed after the incident, had gone to the malwan police station and the head constable who was present at the police station asked the complainant to give his complaint in writing. pw4, therefore, gave ex.28, wherein he had stated the presence of divakar joshi, who entered the house and assaulted the complainants friend sanjay gaonkar and he also saw bhai wagh and other 5-6 persons and they were having sword, gupti in their hands and they had assaulted sanjay gaonkar, which is reflected in ex.28 dated 19.10.1987. ex. 54 and ex.58 dated 19.10.1987 give a different version. ex. 27 has been treated as the fir, pw4, of course, named only a1, a3 and a7, not all. in ex.28, pw4 had not named a3 and a7.10. we find discrepancies in the version given at the very initial stage. the discrepancies and contradictions noticed by the trial court were found to be of minor in nature by the high court, but in our view, there is serious flaw in the conduct of the case by the prosecution and the discrepancies and contradictions pointed out by the trial court cannot be ignored as minor. no explanation is forthcoming as to why shobhana parkar was not examined in this case. even, according to the prosecution, shobhana parkar had also received injuries on her arm when she tried to intervene. the prosecution story is that the deceased sanjay gaonkar ran to the house of shobhana parkar and that he was attacked just inside the door of the house of shobhana parkar. if that being so, in our view, shobhana parkar, who herself was injured and tried to intervene, was a crucial witness. non-examination of shobhana parkar as well as the contradictory versions in ex.28 and ex.27 as well as the discrepancies and omissions pointed by the trial court, create a dent in the prosecution story.". the learned counsel for the appellant also relied on the judgment of the hon'ble supreme court in prabhat alias bhai narayan wagh & others v. state of maharashtra reported in 2013 cri. l.j.3236, wherein it is stated as follows: ".17. suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. in a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. this is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. in a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. the large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. in such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. the court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.32. in ramnaresh & ors. v. state of chhattisgarh, air2012sc1357 this court held as under: ".it is a settled principle of law that the obligation to put material evidence to the accused under section 313 crpc is upon the court. one of the main objects of recording of a statement under this provision of crpc is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. but once he does not avail this opportunity, then consequences in law must follow. where the accused takes benefit of this opportunity, then his statement made under section 313 cr.p.c, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. even under the latter, he faces the consequences in law.". (iii) thirdly, learned counsel would contend that there is no corroboration between the evidence of the witnesses, viz., pw1; pw6 and pw9 as their evidence is self-contradictory, which creates a doubt in the prosecution case. the learned counsel for the appellant relied on the judgment of the supreme court in tejinder singh alias kaka v. state of punjab reported in 2013 cril.j3130 relevant paragraphs of the said judgment are extracted hereunder: ".20. as could be seen from the evidence of pw-8 and pw-9, there is major discrepancy between their statements of evidence. pw-8 chet ram has stated in his evidence that the appellant tejinder singh started digging a pit with spade in the sugarcane field, whereas pw-9 has stated in his evidence that the said appellant was not present at that time. in view of the major discrepancy and contradiction between the statements of one witness and the other, it not only creates a grave suspicion regarding the said appellant being part of the offence but also makes his presence doubtful at the place of occurrence. therefore the ground urged in this regard by the learned senior counsel that the learned sessions judge in placing reliance upon the testimony of the said witnesses and recording the finding against the above appellant on the charges and passing an order of conviction and sentence which is affirmed by the high court is without proper appreciation of the major discrepancy in the statements of the above named witnesses regarding the presence of the aforesaid appellant at the place of occurrence. the courts below have also failed to take into consideration the evidence of pw-10 krishna, wherein she had deposed in the case that on 24.5.2000 at about 8 a.m. she along with nimmo had gone to take fodder from the fields. at about 9.00 a.m. when they were coming back, they found that sunny lal was watering the fields. in the meantime, the deceased also entered the fields having a jute cloth in her hands. the accused binder and kaka were seen going towards the tube well. accused gurdeep singh and harnek singh were also seen going on the scooter towards the tube well side, but she has not named the appellant tejinder singh. this creates a major discrepancy in the statements of evidence of pw-8 and pw-9 regarding the participation of this appellant in committing offence as alleged against him.21. moreover, there is nothing substantive and positive evidence placed on record against the aforesaid appellant by the prosecution to prove its case against him. therefore, the reliance placed in sukhrams case (supra) regarding legal proposition should be applied to the case in hand. it cannot be said that the prosecution has proved its case beyond reasonable doubt. the benefit of doubt should have been extended to tej inder singh in the impugned judgment by the high court while re- appreciating the evidence on record in exercise of its jurisdiction as it has failed to notice that the ratio laid down at para 18 in the case of sukhram referred to supra that to constitute an offence under section 201 ipc the following four ingredients viz. (i) to (iv) have to be established:- 18. to bring home an offence under section 201 ipc, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. it is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. it hardly needs any emphasis that in order to bring home an offence under section 201 ipc, a mere suspicion is not sufficient. there must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.".13. on the other hand, mr.v.m.r.rajentren, learned additional public prosecutor would vehemently contend that the discrepancy pointed out by the appellant is only minor in nature and it would not affect the prosecution case as the motive has been clearly proved and the guilt has been established by the witnesses. as the accused taken a revenge against pw1 for not giving her daughter in marriage to him and since the occurrence took place in the house of pw1, the same would not give any room for suspicion to disbelieve her evidence and therefore, the prosecution has made out a case and the conviction and sentence rendered by the trial court is perfectly in accordance with law.14. we have heard mr.s.suresh, learned counsel for the appellant and mr.v.m.r.rajentren, learned additional public prosecutor and perused the entire records including the impugned judgment of conviction.15. it is an admitted case of the prosecution that prior to the occurrence, pw1, and her family were residing at kadambur, where the accused was also residing and since he insisted pw2 to marry him, they shifted their residence to koothandavar nagar. on the date of occurrence also, the accused went to the house of pw1 and demanded her to give her daughter [pw2]. in marriage to him. since it was refused by pw1 for the reason that they belong to different religion,the accused took vegetable cutting knife [mo1]. and attempted to cut the throat of pw1. both in the chief and the cross examination, pw1 had admitted that on seeing the accused taking mo1 and attempting to attack her, she moved far away and he cut the throat of the deceased/child. but her version is falsified since it is evident from the accident register [ex.p7]. wherein it is stated by pw1 to the doctor [pw9]. that the deceased alleged to have cut her throat by herself with a vegetable cutting knife when she was away from home at about 2.30 p.m. on 09.09.2009. if that could be the position, the presence of the pw1 in the scene of occurrence itself is doubtful.16. secondly, the origin of first information report is burked in this case as it is evident in the cross-examination of pw1 that she had informed about the occurrence orally to the melpetti police station which is situated nearly 1 k.m. away from the scene of occurrence within one hour from the time of occurrence and the same was also reduced in writing by the police and thereafter, she went to the ambur government hospital along with her child at 3.00 p.m. it is also her further version that police also came to the hospital at ambur and recorded her statement. at that time, she told the doctor [pw9]. that she was not aware as to who had cut the throat of her child. thereafter, the child was referred to the government hospital, vellore, where the child identified the accused. but, in the chief examination, pw1 has stated that when she was in the government hospital, vellore, the officials from melpatti police station came there at 9.00 p.m. and enquired her, pursuant to which ex.p.1 came into existence. if that be so, the earlier two complaints given by pw1, viz., one at melpatti police station and the other at the government hospital, ambur were suppressed by the prosecution. when once, the very origin of the fir is doubtful, the entire case of the prosecution would collapse.17. further, pw6, an independent witness, a neighbour, who is staying nearby to the place of occurrence deposed in chief examination that when she came to the scene of occurrence, she saw a person coming out of pw1's house and in the cross-examination, she has given a total go-by to her version in the chief-examination to the effect that since she was suffering from feeble vision, the police had not asked her to identify the accused. she also deposed that she had not informed the police of seeing the accused running away and of not having informed about the presence of the accused in the house of pw1. similarly, when pw9, the doctor was questioned as to the identity of the accused before the court, he had deposed that he could not remember as to whether the said accused is the person who was identified by the deceased child on the date of admission of the child in the hospital.18. from analysing the evidence, it is evident that pw1's evidence is in total contradiction which would shatter the prosecution case. as held by the hon'ble apex court in raj kumar singh @ raju @ batya vs state of rajasthan reported in 2013 cri l.j.3276, the cardinal principle to test the credibility is the approach to be adopted if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief. exaggerations per se do not render the evidence brittle. but it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. it is, in fact, the entirety of the situation which must be taken into consideration. while appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. the discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation. after exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused.19. in the instant case, the origin of the most important and vital document, viz., the fir itself has been suppressed by the prosecution and the same goes to the very root of the prosecution case as held by the hon'ble apex court in marudanal augusti v. state of kerala reported in air1980sc638 as the discrepancies and the contradictions pointed out by the learned counsel for the appellant in the prosecution case, are not minor in nature, the same would give rise to the benefit of doubt which shall be extended in favour of the accused.20. keeping in mind the above settled principles and also applying the ratio laid down by the hon'ble apex court to the case on hand, what would be a factor is that the presence of p.w.1 in the scene of occurrence is doubtful and the origin of f.i.r has not at all been clearly established by adducing satisfactory evidence and it gives a room for suspicion and then, the identification of the accused by p.w.9, would make the point clear that he did not remember as to whether the accused is the person identified by the deceased, who died on the date of admission in the hospital.21. all the above salient factors would give a pellucid impression to this court that the live link connecting the appellant/accused to the guilt is missing and thereby, it is clear that the prosecution failed to prove its case beyond all reasonable doubts.22. in the result, this criminal appeal is allowed. the conviction and sentence imposed on the appellant by the learned additional district and sessions judge, fast track court, vellore in s.c.no.296 of 2010 are set aside and he is acquitted of the charges levelled against him. the appellant is directed to be set at liberty forthwith unless his custody is required in connection with any other case. the bail bonds, if any executed by the appellant, shall stand cancelled. the fine amount, paid by the appellant shall be refunded. [v.d.p.j.,]. [c.t.s.j.,]. 30.08.2013 index : yes/no internet : yes/no gpa/rsbu v. dhanapalan, j., and c.t. selvam, j., gpa judgment in criminal appeal no.29 of 2012 30.08.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

30. 08.2013 CORAM THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MR.JUSTICE C.T.SELVAM Criminal Appeal No.29 of 2012 Hari Krishnan ... Appellant/Single accused -vs- State rep. By Inspector of Police Melpatti Police Station Vellore District (Crime No.194 of 2009) ... Respondent/Complainant Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the conviction and sentence imposed upon him by the learned Additional District Sessions Judge, Fast Track Court, Vellore District in S.C.No.296 of 2010 dated 30.11.2011 for the offence under Section 302 IPC and sentenced to life imprisonment and fine of Rs.1000/- in default three months rigours imprisonment. For Appellant : Mr.G.Vinodh Kumar For Respondent : Mr.V.M.R.Rajentren Additional Public Prosecutor

JUDGMENT

(Judgment of the Court was made by V.DHANAPALAN,J.,) The appellant in this appeal stands convicted in S.C.No.296 of 2010 on the file of the Additional District and Sessions Judge (Fast Track Court), Vellore on 30.11.2011 for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigours imprisonment for three months. Therefore, he is before this Court in this appeal questioning the correctness and sustainability of the judgment of the trial Court dated 30.11.2001 both in respect of conviction as well as sentence.

2. The case of the prosecution is as follows: PW1-Shahidha Begam, the mother of the deceased was residing at Koothandavar Nagar with her family. She is the second wife of PW5-Ejazz. She had two sons and three daughters. Earlier, PW1 and her family were residing at Kadambur wherein the accused was also residing. PW2-Qamar Thaj is PW1's elder daughter with whom the accused had love affair. PW2 was working in a shoe company and the accused forced her to love him. PW2 informed the same to her mother PW1, who in turn informed the same to her brother PW4-Nazeer. On the advise given by PW4, PW1 shifted her residence from Kadambur to Koothandavar Nagar. On 09.09.2009, when PW2 was at her work place, the accused went to PW1's house and insisted her to give her daughter PW2 in marriage to him. However, PW1 had stated that since both are belonging to different religion, she was not interested in giving her daughter in marriage to him. The accused interrogated aggressively as to whether it is possible for her to give her daughter in marriage to him or not. Even then, PW1 refused. All of a sudden, the accused took M.O1vegetable cutting knife and attempted to cut the throat of PW1 and since she moved far away, the accused cut the throat of her younger daughter Aayisha, aged about 8 years, who was lying due to her ill-health. The accused also threatened PW1 with dire consequences and ran away from the scene of occurrence with M.O1 On hearing the hue and cry, PW6-Kuppammal came to the scene of occurrence and saw a person running from the house of PW1 and also saw the child Aayisha bleeding profusely. Immediately, PW1 took her daughter Aayisha to the Government Hospital, Ambur, where PW9-Dr.Mushthaq had given treatment and asked the injured child as to who had caused the injury. The child pointed out the accused, who was standing there. The doctor, after seeing the accused, asked PW1 as to who was he, for which she had informed the name of the accused to the doctor. After giving first aid, the doctor referred the injured child to the Government Medical College Hospital, Vellore for treatment. PW1 had given a oral complaint to the police which is marked as Ex.P1 and the same was reduced in writing on 09.09.2009 at 23.00 hours by the Police officials attached to Melpatti Police Station. On the next day, i.e., on 10.09.2009 at about 06.00 hours, the child died.

3. PW1 is the mother of the deceased. The motive alleged by the prosecution is that the accused demanded PW1 to give her daughter in marriage to him and since PW1 refused, to take revenge on PW1, he attempted to cut PW1 with MO1 and since she escaped, the accused cut the throat of the deceased with an intention to cause the death of an eight years old child.

4. PW2 was working in a shoe company. On hearing about the occurrence, she rushed to the Government Hospital, Ambur and saw her sister Aayisha. In her evidence, she has deposed that at the hospital, she saw her sister Aayisha pointing out the accused to the doctor. It is her further statement that on the very same day, PW3 and PW4, brothers of PW1, also came to the hospital and saw the deceased child identifying the accused by showing her hands towards him. PW5, the husband of PW1, on the information given by PW1, saw his daughter, the deceased, at the hospital on the same day.

5. PW9, the doctor treated the deceased in the Government Hospital, Ambur on 09.09.2009 at 03.50 p.m. to whom PW1 has stated that her child cut her throat with a vegetable cutting knife [MO1]. at her home when she was away from the house at 14.30 hours. He found the following injuries: ".8cm long x 1cm wide full thickness incised wound with trachea slit open in front of the neck. Open cut injury.". Since the cut was a deep one, the child was not able to speak and when PW9 enquired her as to how she sustained such injury, the child identified a person who was standing there by pointing her fingers towards him and the doctor learnt from PW1 that the name of the person is Hari. After giving first aid, PW9 issued Ex.P7-Accident Register copy and referred the child to the Government Medical College Hospital, Vellore, for further treatment. PW9 also opined that the injury found in Ex.P7 could have caused with MO1.

6. PW15, the Special Sub-Inspector of Police attached to Melpatti Police Station during the relevant point of time, has stated in his evidence that he recorded the statement of PW1 under Ex.P1 on 09.09.2009 at 21.00 hours and registered a case in Crime No.6/2010 for offence under Section 307 IPC at 23.00 hours. Ex.P.19 is the printed FIR and he has forwarded the same to the higher official.

7. PW16, Mohan, the then Inspector of Police attached to Pernampet Police Station, took up investigation and reached the place of occurrence on 10.09.2009 at 06.00 hours and in the presence of witnesses, namely PW7-Murugesan and one Bhoopalan, he prepared Ex.P2-Observation Mahazar and obtained their signatures. Then he prepared the rough sketch, which is marked as Ex.P20. He also seized the blood stained pant-M.O.4 and blood stained tops-M.O.5 under the cover of the Ex.P3-Mahazar in the presence of the same witnesses. PW13, the photographer came to the place of occurrence and photographed the incident. The photographs and CD were marked as M.O7series and M.O8respectively. Then the Investigating Officer, on receipt of the death intimation from the hospital through PW15-Head Constable, altered the section to one u/s.302 IPC and Ex.P.21 is the altered FIR, which was sent to the Court concerned. He went to the Government Medical College Hospital, Vellore and held inquest on the body of the deceased in the presence of relatives and panchayatdars and prepared inquest report, Ex.P22. Then, PW15 sent the dead body for post-mortem along with the requisition under Ex.P.8. The Doctor, P.W.10 attached to the Government Hospital, Vellore, on receipt of the requisition from the investigating officer, commenced the post-mortem at 16 00 hours on 10.09.2009 and he found the following injuries: ".External Injuries: T-shaped sutured wound seen over upper part of front and both sides of neck. The horizontal arm measures 10 cms. The vertical arm measures seen. On removal of the sutures, the margin are clean cut. On further dissection, the underlying ribbon muscles of the front and left side of neck are found cut. The superficial veins of the neck also found cut on the left side of neck. Trachea found sutured underlying the injury to a length of 2.5 cms. The lateral aspect of oesophagus found severed to a length of 1.5 cms. Extravasation of blood seen in the surrounding soft tissue of the neck. Other findings: Hyoid Bone: Intact Larynx and Trachea: Contained mucous froths, Mucosa Pale. Lungs: Normal in size. On cut section pale. Heart: Normal size, Great Vessels normal. Coronary vessels patent. Coronary Ostia were normal. C/s.Chambers empty. Stomach:

600. ml of altered blood present. Mucosa pale. Small Intestine: Contained yellowish chyme with bile stained fluid. No specific characteristic small perceived. Mucosa Pale Large intestine: Distended with gas Liver, Spleen, Kidney: Normal in size. On cut section found pale. Gall Pladder: Contained bile Pancreas: Normal in size. C/s.Pale Bladder: Empty Genetalia: Normal All other internal organs on cut section pale. ". Ex.P.10 is the Post Mortem Certificate wherein PW10 has opined that the deceased appeared to have died due to cut injury in the neck.

8. PW16, the Inspector of Police proceeded with the further investigation. After search, on 11.09.2009 at 08.00 hours, he arrested the accused at Koothandavar Nagar bus stop near the welding workshop in the presence of PW8, the Village Administrative Officer and Govindan, Village Menial and the accused came forward to give a confession statement, the admissible part of which is marked as Ex.P.4. Pursuant to the same, he seized MO6 - Jeans pant from the accused in the presence of same witnesses under the Mahazar Ex.P5. The accused also produced the vegetable cutting knife, M.O1 which he had concealed below the hillock in the presence of the mahazar witnesses. Thereafter, the accused was sent to judicial custody and Material objects were submitted to the Court through Form  95, marked as Ex.P23. The Sub-Inspector of Police had given a requisition to the Chief Judicial Magistrate to record 164 statement of Pws 1 to 5, pursuant to which the learned Chief Judicial Magistrate had passed Ex.P17 on 11.07.2009 and nominated Judicial Magistrate, Sholinghur to record the statements of Pws 1 to 5. Then, the learned Judicial Magistrate, Sholinghur on receipt of the proceedings from the learned Chief Judicial Magistrate issued summons to Pws 1 to 5 and the witnesses were present on 30.12.2009 and were identified by the police. The learned Judicial Magistrate, Sholinghur recorded the statement after following the procedure and sent the entire file Ex.P18 to the learned Judicial Magistrate, Gudiyatham. On completion of the investigation, PW16, the then Inspector of Police, framed charges against the accused on 23.02.2012 under Section 449 and 302 IPC and the matter has been committed to the Sessions Court for trial.

9. To substantiate its case, the prosecution examined Pws.1 to 16; produced documentary evidence, viz., Ex.P.1 to Ex.P.23 besides marking M.Os.1 to 8.

10. When the accused was questioned u/s.313 Cr.P.C., as to the complicity of the offence, he has come forward with the version of total denial. On the side of the accused, no witness was examined nor any documentary evidence was let in.

11. The Trial Court, on consideration of the oral and documentary evidence, found the accused guilty of the offence and convicted and sentenced him as stated above. Hence, this appeal.

12. Mr.S.Suresh, learned counsel appearing for the appellant would put forward the following contentions:- (i) The evidence of PW1 is not reliable as the same is self-contradictory. (ii) The origin of FIR itself is doubtful as it is stated by PW1 that the police from Melpatti Police Station came to the hospital at 23.00 hours and enquired her and pursuant to her oral complaint, Ex.P.1 came into existence, which according to the prosecution is the original FIR. But, even prior to that, PW1 has stated to the doctor-PW9 that at about 3.50 p.m. the child had cut her throat with MO1 when she was away from home. Therefore, the possibility of giving the information about the occurrence to the police by the hospital authorities cannot be ruled out. Hence, the earliest information given by PW1 to the doctor is suppressed by the prosecution and Ex.P.1-FIR is a fabricated document. In support of his contention, learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in Raj Kumar Singh Alias Raju Alias Batya V. State of Rajasthan reported in 2013 CRI L.J.3276, wherein it has been observed as follows: ".9. We have heard both the parties at length and also gone through the oral and documentary evidence, especially the evidence of the eye witnesses PWs 4, 8, 15 and 16. Complainant PW4, it may be noticed after the incident, had gone to the Malwan police station and the Head Constable who was present at the police station asked the complainant to give his complaint in writing. PW4, therefore, gave Ex.28, wherein he had stated the presence of Divakar Joshi, who entered the house and assaulted the complainants friend Sanjay Gaonkar and he also saw Bhai Wagh and other 5-6 persons and they were having sword, gupti in their hands and they had assaulted Sanjay Gaonkar, which is reflected in Ex.28 dated 19.10.1987. Ex. 54 and Ex.58 dated 19.10.1987 give a different version. Ex. 27 has been treated as the FIR, PW4, of course, named only A1, A3 and A7, not all. In Ex.28, PW4 had not named A3 and A7.

10. We find discrepancies in the version given at the very initial stage. The discrepancies and contradictions noticed by the trial Court were found to be of minor in nature by the High Court, but in our view, there is serious flaw in the conduct of the case by the prosecution and the discrepancies and contradictions pointed out by the trial court cannot be ignored as minor. No explanation is forthcoming as to why Shobhana Parkar was not examined in this case. Even, according to the prosecution, Shobhana Parkar had also received injuries on her arm when she tried to intervene. The prosecution story is that the deceased Sanjay Gaonkar ran to the house of Shobhana Parkar and that he was attacked just inside the door of the house of Shobhana Parkar. If that being so, in our view, Shobhana Parkar, who herself was injured and tried to intervene, was a crucial witness. Non-examination of Shobhana Parkar as well as the contradictory versions in Ex.28 and Ex.27 as well as the discrepancies and omissions pointed by the trial court, create a dent in the prosecution story.". The learned counsel for the appellant also relied on the judgment of the Hon'ble Supreme Court in Prabhat alias Bhai Narayan Wagh & Others V. State of Maharashtra reported in 2013 CRI. L.J.3236, wherein it is stated as follows: ".17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.

32. In Ramnaresh & Ors. v. State of Chhattisgarh, AIR2012SC1357 this Court held as under: ".It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.". (iii) Thirdly, learned counsel would contend that there is no corroboration between the evidence of the witnesses, viz., PW1; PW6 and PW9 as their evidence is self-contradictory, which creates a doubt in the prosecution case. The learned counsel for the appellant relied on the judgment of the Supreme Court in Tejinder Singh alias Kaka V. State of Punjab reported in 2013 CRIL.J3130 Relevant paragraphs of the said judgment are extracted hereunder: ".20. As could be seen from the evidence of PW-8 and PW-9, there is major discrepancy between their statements of evidence. PW-8 Chet Ram has stated in his evidence that the appellant Tejinder Singh started digging a pit with spade in the sugarcane field, whereas PW-9 has stated in his evidence that the said appellant was not present at that time. In view of the major discrepancy and contradiction between the statements of one witness and the other, it not only creates a grave suspicion regarding the said appellant being part of the offence but also makes his presence doubtful at the place of occurrence. Therefore the ground urged in this regard by the learned senior counsel that the learned sessions judge in placing reliance upon the testimony of the said witnesses and recording the finding against the above appellant on the charges and passing an order of conviction and sentence which is affirmed by the High Court is without proper appreciation of the major discrepancy in the statements of the above named witnesses regarding the presence of the aforesaid appellant at the place of occurrence. The courts below have also failed to take into consideration the evidence of PW-10 Krishna, wherein she had deposed in the case that on 24.5.2000 at about 8 a.m. she along with Nimmo had gone to take fodder from the fields. At about 9.00 a.m. when they were coming back, they found that Sunny Lal was watering the fields. In the meantime, the deceased also entered the fields having a jute cloth in her hands. The accused Binder and Kaka were seen going towards the tube well. Accused Gurdeep Singh and Harnek Singh were also seen going on the scooter towards the tube well side, but she has not named the appellant Tejinder Singh. This creates a major discrepancy in the statements of evidence of PW-8 and PW-9 regarding the participation of this appellant in committing offence as alleged against him.

21. Moreover, there is nothing substantive and positive evidence placed on record against the aforesaid appellant by the prosecution to prove its case against him. Therefore, the reliance placed in Sukhrams case (supra) regarding legal proposition should be applied to the case in hand. It cannot be said that the prosecution has proved its case beyond reasonable doubt. The benefit of doubt should have been extended to Tej inder Singh in the impugned judgment by the High Court while re- appreciating the evidence on record in exercise of its jurisdiction as it has failed to notice that the ratio laid down at para 18 in the case of Sukhram referred to supra that to constitute an offence under Section 201 IPC the following four ingredients viz. (i) to (iv) have to be established:- 18. To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.".

13. On the other hand, Mr.V.M.R.Rajentren, learned Additional Public Prosecutor would vehemently contend that the discrepancy pointed out by the appellant is only minor in nature and it would not affect the prosecution case as the motive has been clearly proved and the guilt has been established by the witnesses. As the accused taken a revenge against PW1 for not giving her daughter in marriage to him and since the occurrence took place in the house of PW1, the same would not give any room for suspicion to disbelieve her evidence and therefore, the prosecution has made out a case and the conviction and sentence rendered by the trial Court is perfectly in accordance with law.

14. We have heard Mr.S.Suresh, learned counsel for the appellant and Mr.V.M.R.Rajentren, learned Additional Public Prosecutor and perused the entire records including the impugned judgment of conviction.

15. It is an admitted case of the prosecution that prior to the occurrence, PW1, and her family were residing at Kadambur, where the accused was also residing and since he insisted PW2 to marry him, they shifted their residence to Koothandavar Nagar. On the date of occurrence also, the accused went to the house of PW1 and demanded her to give her daughter [PW2]. in marriage to him. Since it was refused by PW1 for the reason that they belong to different religion,the accused took vegetable cutting knife [MO1]. and attempted to cut the throat of PW1. Both in the chief and the cross examination, PW1 had admitted that on seeing the accused taking MO1 and attempting to attack her, she moved far away and he cut the throat of the deceased/child. But her version is falsified since it is evident from the Accident Register [Ex.P7]. wherein it is stated by PW1 to the doctor [PW9]. that the deceased alleged to have cut her throat by herself with a vegetable cutting knife when she was away from home at about 2.30 p.m. on 09.09.2009. If that could be the position, the presence of the PW1 in the scene of occurrence itself is doubtful.

16. Secondly, the origin of first information report is burked in this case as it is evident in the cross-examination of PW1 that she had informed about the occurrence orally to the Melpetti Police Station which is situated nearly 1 k.m. away from the scene of occurrence within one hour from the time of occurrence and the same was also reduced in writing by the police and thereafter, she went to the Ambur Government Hospital along with her child at 3.00 p.m. It is also her further version that police also came to the hospital at Ambur and recorded her statement. At that time, she told the doctor [PW9]. that she was not aware as to who had cut the throat of her child. Thereafter, the child was referred to the Government Hospital, Vellore, where the child identified the accused. But, in the chief examination, PW1 has stated that when she was in the Government Hospital, Vellore, the officials from Melpatti Police Station came there at 9.00 p.m. and enquired her, pursuant to which Ex.P.1 came into existence. If that be so, the earlier two complaints given by PW1, viz., one at Melpatti Police Station and the other at the Government Hospital, Ambur were suppressed by the prosecution. When once, the very origin of the FIR is doubtful, the entire case of the prosecution would collapse.

17. Further, PW6, an independent witness, a neighbour, who is staying nearby to the place of occurrence deposed in chief examination that when she came to the scene of occurrence, she saw a person coming out of PW1's house and in the cross-examination, she has given a total go-by to her version in the chief-examination to the effect that since she was suffering from feeble vision, the police had not asked her to identify the accused. She also deposed that she had not informed the police of seeing the accused running away and of not having informed about the presence of the accused in the house of PW1. Similarly, when PW9, the doctor was questioned as to the identity of the accused before the Court, he had deposed that he could not remember as to whether the said accused is the person who was identified by the deceased child on the date of admission of the child in the hospital.

18. From analysing the evidence, it is evident that PW1's evidence is in total contradiction which would shatter the prosecution case. As held by the Hon'ble Apex Court in Raj Kumar Singh @ Raju @ Batya vs State Of Rajasthan reported in 2013 CRI L.J.3276, the cardinal principle to test the credibility is the approach to be adopted if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. It is, in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused.

19. In the instant case, the origin of the most important and vital document, viz., the FIR itself has been suppressed by the prosecution and the same goes to the very root of the prosecution case as held by the Hon'ble Apex Court in Marudanal Augusti V. State of Kerala reported in AIR1980SC638 As the discrepancies and the contradictions pointed out by the learned counsel for the appellant in the prosecution case, are not minor in nature, the same would give rise to the benefit of doubt which shall be extended in favour of the accused.

20. Keeping in mind the above settled principles and also applying the ratio laid down by the Hon'ble Apex Court to the case on hand, what would be a factor is that the presence of P.W.1 in the scene of occurrence is doubtful and the origin of F.I.R has not at all been clearly established by adducing satisfactory evidence and it gives a room for suspicion and then, the identification of the accused by P.W.9, would make the point clear that he did not remember as to whether the accused is the person identified by the deceased, who died on the date of admission in the hospital.

21. All the above salient factors would give a pellucid impression to this Court that the live link connecting the appellant/accused to the guilt is missing and thereby, it is clear that the prosecution failed to prove its case beyond all reasonable doubts.

22. In the result, this criminal appeal is allowed. The conviction and sentence imposed on the appellant by the learned Additional District and Sessions Judge, Fast Track Court, Vellore in S.C.No.296 of 2010 are set aside and he is acquitted of the charges levelled against him. The appellant is directed to be set at liberty forthwith unless his custody is required in connection with any other case. The bail bonds, if any executed by the appellant, shall stand cancelled. The fine amount, paid by the appellant shall be refunded. [V.D.P.J.,]. [C.T.S.J.,]. 30.08.2013 Index : Yes/No Internet : Yes/No gpa/rsbu V. Dhanapalan, J., and C.T. Selvam, J., gpa Judgment in Criminal Appeal No.29 of 2012 30.08.2013