MANU/TN/0194/2017

IN THE HIGH COURT OF MADRAS

Crl. A. No. 405 of 2016
Decided On: 04.01.2017
Appellants: G. Pavadai
Vs.
Respondent: State
Hon'ble Judges/Coram:
S. Nagamuthu and N. Authinathan, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: J. Agni Selvaraju
For Respondents/Defendant: P. Govindarajan, Addl. P.P.
JUDGMENT
S. Nagamuthu, J.
1. The appellant is the sole accused in Sessions Case No. 246 of 2014, on the file of
the Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Villupuram.
He stood charged for the offence under Section 302 of the Indian Penal Code. By
judgment dated 30.12.2015, the trial Court convicted him under Section 302 IPC and
sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in
default, to undergo simple imprisonment for one year. Challenging the said
conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
(a) The deceased in this case was one Mrs. Selvi. The accused is her
husband. The marriage between them was celebrated 20 years before her
death. Both the accused and the deceased were working in a brick-kiln. Thus,
they were eking out their livelihood only by coolie work. In course of time,
the accused had developed intimacy with one Malar and brought her to his
house. Thus, all the three were residing in the same house. This resulted in
frequent quarrels between the accused and the deceased. This is stated to be
the motive for the occurrence.
(b) It is stated that on 4.08.2012, at about 11.00 p.m., when the deceased
alone was at her house, the accused attacked her with a cricket bat on her
head, face and other parts of the body and fled away from the scene of
occurrence. The occurrence was not witnessed by any one. P.W. 2, is the
neighbour of the deceased. She found the deceased lying just infront of her
house. The deceased was vomiting and she also passed motion. Suspecting
some foul play, P.W. 2 immediately informed P.W. 1 and then took the
deceased to the Government Hospital, Thirukoilur, from where, as advised by
the Doctor, she took her to the Government Hospital at Mundiyampakkam
Government Hospital, from where, she was taken to JIMPER Hospital
Puducherry. There also, the doctors declared that her condition was very
serious.

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 (c) In the meanwhile, P.W. 1, the brother of the deceased had gone to
JIMPER Hospital. He brought the deceased to his native place. At about 7.00
p.m., on the same day, she died. Thereafter, P.W. 1 went to
Thiruvennainallur Police Station and made a complaint at about 10.00 a.m.
on 7.8.2012. The then Sub-Inspector of Police (P.W. 9) registered a case on
the said complaint in Crime No. 606 of 2012, under Section 174(1) Cr.P.C. at
10.00 a.m. on 7.8.2012. Ex. P1 is the complaint and Ex. P6 is the F.I.R.
(d) The case was taken up for investigation by P.W. 11. He went to the place
of occurrence, prepared an observation mahazar and a rough sketch, in the
presence of witnesses. He held inquest on the body of the deceased between
12.00 noon and 2.00 p.m. on the same day and forwarded the body for post-
mortem. P.W. 10-Dr. Manivannan conducted autopsy on the body of the
deceased on 7.8.2012 at about 4.15 p.m. He found the following injuries.
"A female body lying on her back symmetrical Rigour Mortis present
an four limbs with external injury cut 2 cm in left side of upper face.
Eyes, mouth closed, teeth intact. Thorax ribs intact lungs-both side
normal in size cut section- congested. Heart normal in size of and
shape left ventricle contain 80 ml right ventricle contains 20 ml
blood.
Abdomen Stomach contain 100 ml of yellow colour fluid mucosa
congested. Liver Normal in size and shape cut section congested
spleen normal in size and shape cut section congested. Kidney both
side normal in size and shape cut section congested. (n.c.) distend
with gas uterus empty. Pelvic, spinal-intact, hyoid-intact.(n.c.)
normal.
Head (n.c.) contusion over the under surface of scalp. left fronto
temporo parietal region Membrane-intact brain-SDH. Over left Fronto
temporo parietal region thin layer of SAH present cut section
congested."
Ex. P8 is the post-mortem certificate. He gave opinion that the deceased died
due to shock and haemorrhage due to multiple injuries found on the body.
He further opined that the injuries found on the body of the deceased could
have been caused by a cricket bat.
(e) The investigation was thereafter taken over by P.W. 12. When
investigation was in progress, it is alleged that the accused appeared before
P.W. 7, the then Village Administrative Officer of the Vadamarudhur, on
08.08.2012, at 1.00 p.m. The accused wanted to confess. Having satisfied
that the accused was in a voluntary mood to confess, he allowed him to
orally confess. P.W. 7 reduced the said confession to writing under Ex. P3.
Then, along with the said confession, he took the accused to the Police
Station and produced him before P.W. 12. P.W. 12 arrested the accused.
While in custody, he made voluntary confession, in which, he disclosed the
place where he had hidden the cricket bat. In pursuance of the same, he took
the police and the witnesses to the place of hide out and produced M.O. 1,
the cricket bat. P.W. 12 recovered the same. On returning to the police
station, he forwarded the accused to the Court for judicial remand and
handed over the material objects also to the Court. On completing the

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 investigation, he laid a charge-sheet against the accused.
3 . Based on the above materials, the trial Court framed charge against the accused
under Section 302 of the Indian Penal Code. The accused denied the same. In order
to prove the case, on the side of the prosecution as many as 12 witnesses were
examined, 15 documents were exhibited, besides one material object. Out of the said
witnesses, P.W. 1 is the brother of the deceased. He has stated that he heard about
the occurrence, went to the hospital and since the condition of the deceased was bad,
she was taken back to his house and at about 7.00 p.m., the deceased died at his
house. He has also spoken about the complaint made by him. P.W. 2, the neighbour
of the deceased has stated that at about 6.00 a.m. when she came out of her house,
she found the deceased lying just infront of her house. She has passed motion and
also vomiting. Suspecting some foul play, she informed P.W. 1 and then admitted the
deceased in hospital. P.W. 3 is yet another neighbour. He has spoken about the illicit
relationship between the accused and one Malar. P.W. 4, a neighbour of the
deceased, has stated that the deceased was lying infront of her house. P.W. 5 has
stated that on hearing about the occurrence, when he went to the house of the
deceased, the deceased was taken in an ambulance to the hospital. P.W. 6 has
spoken about the preparation of observation mahazar and the rough sketch. P.W. 7
has spoken about the extra judicial confession allegedly made by the accused. He has
also spoken about the arrest of the accused and the confession made by him and the
consequential recovery of M.O. 1 from his possession. P.W. 8 has stated that he took
the dead body and handed over the same to the Doctor for post-mortem. P.W. 9 has
spoken about the registration of the case. P.W. 10 has spoken about the post-mortem
conducted by him. P.Ws. 11 and 12 have spoken about the investigation done and
the final report filed.
4. When the above materials were put to the accused, he denied the same as false.
However, he did not choose to examine any one on his side nor mark any document.
His defence was a total denial.
5. Having considered all the above, the trial Court convicted the accused, as detailed
in first paragraph of this judgment and that is how the accused is before this Court.
6 . We have heard the learned counsel for the appellant and also the learned
Additional Public Prosecutor appearing for the State and we have also perused the
records carefully.
7 . In this case, as we already narrated, the prosecution relies only on the extra
judicial confession, said to have been made by the accused to P.W. 7, on 8.8.2012.,
whereas, the occurrence was on 7.8.2012.
8 . The learned counsel for the appellant would submit that the accused would not
have made such confession at all to P.W. 7. The learned counsel would further
submit that even the trial Court has disbelieved the same.
9 . We find force in the argument of the learned counsel. P.W. 7, during cross-
examination, has admitted that Ex. P3, the extra judicial confession, said to have
been made by the accused to him, is in the handwriting of P.W. 12, which would go
to prove that the extra judicial confession (Ex. P3) was recorded only by P.W. 12, in
the presence of P.W. 7. Therefore, this extra judicial confession is hit by Section 25
of the Indian Evidence Act and thus, it cannot be believed. The trial Court has
disbelieved the same on the ground that the accused would not have chosen P.W. 7,
who is a total stranger to him, to confess. On this score also, the extra judicial

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confession cannot be believed.
1 0 . The trial Court has however convicted the accused on the ground that the
accused has no explanation about the manner in which the deceased had died. The
said view taken by the trial Court is not correct in view of the fact that there is no
evidence at all that the accused was at his house on the crucial date. When there is
no evidence that he was available at his house, at the time of occurrence, the
question of expecting him to explain as to how the deceased sustained injuries does
not arise. Apart from the above, there is no other evidence against the accused,
except motive.
11. In our considered view, the prosecution has not established a strong suspicion
against the accused. The possibility of the deceased, who was just in front of her
house, having been killed by somebody else cannot be ruled out. Above all, the
earliest statements made by the witnesses to the doctor at Thirukoilur, then at
Mundiyampakkam Government Hospital, then at JIMPER Hospital, Puducherry have
not been placed, before the Court. The details of the treatment given to the deceased
is also not before the Court. No doctor, who has treated the deceased, either at
Government Hospital at Thirukovilur, or at Mundiyampakkam Government Hospital or
at Puducherry, also was examined. Therefore the condition of the deceased from the
time she was admitted in the hospital till her death is not proved. For these reasons,
we hold that the prosecution has failed to prove the case beyond reasonable doubts
and therefore, the appellant is entitled for acquittal.
1 2 . In the result, this criminal appeal is allowed; the conviction and sentence
imposed on the appellant by the trial Court are set aside and the appellant/accused is
acquitted. Bail bond, if any, executed by him shall stand cancelled. Fine amount, if
any paid by him is ordered to be refunded forthwith.
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