{"id":172603,"date":"2003-03-12T00:00:00","date_gmt":"2003-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harichandran-saravanan-vs-state-on-12-march-2003"},"modified":"2017-11-28T15:13:20","modified_gmt":"2017-11-28T09:43:20","slug":"harichandran-saravanan-vs-state-on-12-march-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harichandran-saravanan-vs-state-on-12-march-2003","title":{"rendered":"Harichandran @ Saravanan vs State on 12 March, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Harichandran @ Saravanan vs State on 12 March, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 12\/03\/2003\n\nCoram\n\nThe Hon'ble Mr.Justice P.D.DINAKARAN\n\nCriminal Appeal No.649 of 1996\n\n\nHarichandran @ Saravanan                                       .. Appellant\n\n-Vs-\n\nState,\nrep. by Inspector of Police,\nPapparapatti Police Station\nCrime No.150\/89.                                                .. Respondent\n\n\nPrayer:- Appeal against the order of conviction and sentence dated 2  6.8.1996\npassed  by the learned Principal Sessions Judge, Krishnagiri at Dharmapuri, in\nSessions Case No.43 of 1992.\n\n!For Appellant  :  Mr.C.Pandian\n\n^For Respondent :  Mr.V.Jayaprakash Narayanan,\n                Govt.  Advocate (Crl.  Side)\n\n\n:J U D G M E N T\n<\/pre>\n
        In this appeal, the appellant assails  the  judgment  of  the  learned
\nPrincipal  Sessions  Judge,  Krishnagiri  at  Dharmapuri,  dated  26.8.1996 in
\nSessions Case No.43 of 1992, convicting him for the offences punishable  under
\nSections 304  Part  I  and  307 I.P.C.  and sentencing him to undergo rigorous
\nimprisonment  for  five  years  and  three  years  for   the   said   offences
\nrespectively,  directing  both  the  sentences to run concurrently, for having
\ncaused the death of his wife, Dayawathi, and for having  attempted  to  murder
\nP.W.4.\n<\/p>\n
        2.   According  to  the prosecution, a lascivious relationship between
\nP.W.4 and Dayawathi (deceased), who is nonetheless the wife  of  the  accused,
\nwas  the  motive  behind  the  crime  in  question,  as  spoken by the Village
\nAdministrative Officer (P.W.1), the paramour  of  the  deceased  (P.W.4),  the
\nfather  of  P.W.4  (P.W.7)  and  the Investigating Officers ( P.Ws.10 and 11).
\nHowever, it is trite law that a mere existence of such motive, by  itself,  is
\nnot  sufficient  to  determine  the  criminal  character of an accused, as the
\nprosecution is bound to prove the  charges  against  the  accused  beyond  all
\nreasonable doubts, failing which, the accused is entitled to be acquitted.\n<\/p>\n
        3.    The   sheet-anchor  of  the  case  of  the  prosecution  is  the
\nextrajudicial confession statement (Ex.P1) said  to  have  been  made  by  the
\naccused  before the Village Administrative Officer (P.W.1), in the presence of
\none Muniyan, at 6.30 a.m.  on 17.5.1989 at Pannaikulam  Village,  which  is  2
\nKms.   away from the place of occurrence, namely, Kittampatti Village, stating
\nthat the accused had pushed his wife Dayawathi ( deceased) and the paramour of
\nthe deceased (P.W.4), into a well belonging to P.W.4, at about 10.30 p.m.   on
\n16.5.1989.\n<\/p>\n
        4.  As per the evidence of P.W.1, the accused was the Secretary of the
\n“Youth  Welfare  Association”  of  the  Kittampatti  village and P.W.4 was the
\nTreasurer.  Both of them were related and moving closely.  P.W.4 used to visit
\nthe house of the accused frequently six months prior  to  the  occurrence  and
\ndeveloped illicit  intimacy  with Dayawathi ( deceased).  The deceased used to
\nbeat the children for no reason.  Doubting the conduct of  the  deceased,  the
\naccused  enquired the deceased about her relationship with P.W.4, to which the
\ndeceased confessed her guilt and pleaded pardon.  However, the accused decided
\nto kill Dayawathi (deceased) and her paramour (P.W.4).\n<\/p>\n
        5.  As per the extra-judicial confession  statement  (Ex.P1),  on  the
\ndate  of  occurrence,  the  accused  after  his  dinner,  under the pretext of
\nsleeping, was observing his wife Dayawathi (deceased), who removed her anklets
\nand went away.  The accused followed her till she reached the  well  belonging
\nto P.W.4,  where  P.W.4  was  waiting  for Dayawathi ( deceased).  The accused
\nheard the deceased telling P.W.4 that they should stop the illicit intimacy as
\nher husband (accused) had come to know the same.  The deceased  also  informed
\nP.W.4 that  the child in her ovum was conceived through P.W.4.  The moment the
\naccused overheard the above  conversation  between  his  wife  (deceased)  and
\nP.W.4, he  decided  to  kill  both of them.  The accused pushed P.W.4 into the
\nwell first.  In the meanwhile, as the deceased  ran  away  out  of  fear,  the
\naccused chased  and  caught her and pushed her also into the well.  The entire
\noccurrence had taken place at about 10.30 p.m.  on 16.5.1989.  Believing  both
\nDayawathi   (deceased)  and  P.W.4  would  have  died,  the  accused  left  to
\nKittampatti village to hide himself till the morning when he met  the  Village
\nAdministrative  Officer  (P.W.1)  at  Pannaikulam  and  gave an extra-judicial
\nconfession (Ex.P1) at about 6 a.m.  on 17.5.1989 .\n<\/p>\n
        6.  Speaking about the said extra-judicial confession  statement  (Ex.
\nP1),   the   Village   Administrative   Officer   (P.W.1)   deposed  that  the
\nextra-judicial confession statement (Ex.P1) was obtained in  the  presence  of
\none  Muniyan,  the Village Assistant of Pannaikulam village, with whom he went
\nto the scene of occurrence and found that the body of the deceased (Dayawathi)
\nwas floating.  As per the information gathered by P.W.1,  one  Gopal  (P.W.7),
\nthe father  of P.W.4, took P.W.4 to K.N.  Rao Hospital at Salem for treatment.
\nAfter preparing a report (Ex.P2) at the place of occurrence,  P.W.1  took  the
\naccused  to Papparapatti Police Station and handed over the accused along with
\nExs.P1 and P2.\n<\/p>\n
        7.  On receipt of Exs.P1 and P2, the  Head  Constable  Thiru.Jayaraman
\n(P.W.8) registered a First Information Report (Ex.P3), at about 9.30 a.m.  for
\nthe offences  punishable  under  Section  302  I.P.C.    for  having  murdered
\nDayawathi (deceased) and Section 307 I.P.C.  for having  attempted  to  murder
\nP.W.4.\n<\/p>\n
        8.   According  to  P.W.1,  the Inspector of Police, Pennagaram Police
\nStation (P.W.10) came to the Papparapatti Police Station at about 10.45  a.m.,
\nenquired  the  accused  and  also  recorded  a  confession  statement from the
\naccused.\n<\/p>\n
        9.  It was further narrated by P.W.1 that all three  of  them,  namely
\nP.W.1,  the  investigating  officer (P.W.10) and the accused, went back to the
\nplace of occurrence at about 12 noon  on  17.5.1989  and  P.W.10  prepared  an
\nObservation  Mahazar  (Ex.P4)  and  a  Rough Sketch (Ex.P8) in the presence of
\nP.W.1 and one Shanmugam, and both the observation Mahazar  (Ex.P4)  and  rough
\nsketch (Ex.P8) were duly vouched by P.W.1 and the said Shanmugam.\n<\/p>\n
        10.   Based  on  Exs.P1  and  P2  and  the  evidence  of  the  Village
\nAdministrative Officer (P.W.1), the investigating officers  (P.W.10)  and  his
\nsuccessor  (P.W.11)  investigated  into  the  matter, examined Raman, Mathesh,
\nNynagounder and P.W.3 on 25.2.1990; P.W.4 on 30.3.1990; and P.W.6 and P.W.7 on
\n10.5.1990; recorded their statements, and filed a  final  report  against  the
\naccused  on 17.11.1990 charging him for the offences punishable under Sections
\n302, 316 and 307 I.P.C.  Since the accused denied the charges, he was tried in
\nSessions Case No.43 of 1992 on the  file  of  the  Principal  Sessions  Judge,
\nDharmapuri at Krishnagiri.  On being questioned under Section 313 Cr.P.C., the
\naccused  specifically  denied  the extra-judicial confession statement (Ex.P1)
\nand claimed that he was falsely implicated in the above crime  and  therefore,
\npleaded innocence.\n<\/p>\n
        11.   To  substantiate  the  charges  framed  against  the accused, 11
\nwitnesses were examined and 9 exhibits were marked, of them, the following are
\nrelevant to be mentioned:\n<\/p>\n
(i)P.W.1  is  the   Village   Administrative   Officer,   who   recorded   the
\nextra-judicial  confession  statement  (Ex.P1)  said  to have been made by the
\naccused.  P.W.1 also prepared a report (Ex.P2) and handed over the accused and
\nExs.P1 and P2 to Papparapatti Police Station;\n<\/p>\n
(ii)P.W.2 is the  Doctor,  who  treated  P.W.4  through  whom  Ex.P5  –  Wound
\nCertificate of P.W.4 was marked;\n<\/p>\n
(iii)P.W.3  is  the  Doctor,  who  conducted  post  mortem  on the body of the
\ndeceased Dayawathi, through whom the requisition letter to conduct post mortem
\nand the Post Mortem Certificate were marked as Exs.P6 and P7 respectively;\n<\/p>\n
(iv)P.W.4 is the paramour of Dayawathi (deceased), who is nonetheless the wife
\nof the accused;\n<\/p>\n
(v)P.W.5, Somarajan, got into the well, lifted and bailed out P.W.4;\n<\/p>\n
(vi)P.W.6, Jayagopal, spoke about the shifting of P.W.4 to K.N.Rao Hospital at
\nSalem by engaging a taxi;\n<\/p>\n
(vii)P.W.7 is the father of P.W.4, who deposed about the lifting of P.W.4 from
\nthe well;\n<\/p>\n
(viii) P.W.8, Thiru.Jayaraman, is the Head Constable  at  Papparapatti  Police
\nStation, who  registered  the  F.I.R.    (Ex.P3)  before  whom the accused was
\nproduced by P.W.1;\n<\/p>\n
(ix)P.W.9, Thiru.Rathinasamy, was deputed to hand over  the  F.I.R.    to  the
\nCourt and also to the Investigating Officer (P.W.10); and\n<\/p>\n
(x)P.W.10  is  the  Investigating Officer, who conducted initial investigation
\nand prepared an Observation Mahazar (Ex.P4), a Rough Sketch (  Ex.P8)  and  an
\ninquest report (Ex.P9); and\n<\/p>\n
(xi)P.W.11  is  the  Investigating Officer, who succeeded P.W.10 and completed
\nthe investigation.\n<\/p>\n
        12.  The learned Principal Sessions Judge, Krishnagiri, in  the  light
\nof  the  above evidence on record, by judgment dated 26.8.1996 in S.C.No.43 of
\n1992:\n<\/p>\n
i.acquitted the accused from the offence punishable under Section 316 I.P.C.;
\nii.converted the offence punishable under Section 302 I.P.C.   as  an  offence
\npunishable under  Section 304 Part I I.P.C.  and convicted the accused for the
\nsame and sentenced him to undergo rigorous imprisonment  for  five  years  for
\nhaving caused the death of his wife Dayawathi by pushing her in the well;
\niii.also convicted  the  accused for the offence under Section 307 I.P.C.  and
\nsentenced him to undergo rigorous imprisonment  for  three  years  for  having
\nattempted to murder P.W.4; and
\niv.directed both the sentences to run concurrently.\n<\/p>\n
Hence, the above appeal.\n<\/p>\n
        13.  Mr.C.Pandian, learned counsel for the appellant contends that:
\ni.the prosecution had not explained the delay in registering the F.I.R.;
\nii.the evidence of P.W.1 is not trustworthy;\n<\/p>\n
iii.the prosecution failed to explain satisfactorily the reasons for the delay
\nof  ten  months  in  examining  the  only eye-witness P.W.4 and therefore, the
\nevidence of P.W.4 is also unbelievable;\n<\/p>\n
iv.the conduct of P.W.4 and his father-P.W.7  are  strange  inasmuch  as  they
\nfailed  to report the incident to the police immediately after the occurrence;
\nand
\nv.the non-examination of one Mani, the person alleged to have first seen P.W.4
\nlying in the well vitiates the case of the prosecution.\n<\/p>\n
        14.  On the other hand, Mr.V.Jayaprakash Narayanan, learned Government
\nAdvocate (Criminal Side) appearing for the  respondent  took  me  through  the
\nevidence  of  the  prosecution  witnesses  and made submissions supporting the
\nimpugned judgment more or less on the reasons given by the trial Court in  the
\nimpugned judgment.\n<\/p>\n
        15.   I  have  given  careful consideration to the submissions of both
\nsides.\n<\/p>\n
        16.  The case of the prosecution is based on (i)  the  extra  judicial
\nconfession  (Ex.P1),  which  is  relied  upon  not only for the purpose of the
\nexistence of motive to commit the crime, but also to establish the  commission
\nof  crime; (ii) the evidence of an ocular and injured witness P.W.4; and (iii)
\nthe corroborative evidence of (a) P.W.1, the Village  Administrative  Officer;\n<\/p>\n
(b)  P.W.2  and  P.W.3,  the medical witnesses; (c) P.W.5, who spoke about the
\nrescuing of P.W.4 from the well; (d)  P.W.6,  who  shifted  P.W.4  to  K.N.Rao
\nHospital  at  Salem;  (e) P.W.7, the father of P.W.4; (f) P.W.8 and P.W.9, the
\npolice constables, who registered the complaint and handed over the  FIR  copy
\nto  the  Court  as  well  as  to  P.W.10;  and  (g)  P.W.10  and  P.W.11,  the
\ninvestigating Officers, who conducted investigation.\n<\/p>\n
        17.1.  It is well settled in law that when the case of the prosecution
\nis based on an extra-judicial confession, it may not be safe  to  convict  the
\naccused  based  on such extra-judicial confession, if the same is retracted by
\nthe accused in the Court by way of a total denial, as  in  the  instant  case.
\nHence,  the extra-judicial confession statement relied upon by the prosecution
\n(Ex.P1) must be scrutinised with greater care and caution, not  being  carried
\naway merely based on the motive of the accused for committing the crime as set
\nforth by the prosecution.\n<\/p>\n
        17.2.    Admittedly,   the  prosecution  relies  upon  two  confession
\nstatements, namely, (i) the extra-judicial confession said to have  been  made
\nby  the  accused  before  the  Village  Administrative  Officer (P.W.1) in the
\npresence of the Village Assistant (Muniyan); and (ii) the confession statement
\nmade by the accused before the Investigating  Officer  (  P.W.10)  during  the
\npolice  custody  in  the  presence  of  P.W.1  and one Nyna Gounder, which was
\nneither produced before the Court nor marked during the trial.\n<\/p>\n
        17.3.  For placing reliance on Ex.P1, extra-judicial  confession,  the
\nprosecution  is bound to satisfy the Court that the same was made voluntarily,
\nas it is the obligation of the prosecution to prove  the  charges  beyond  all
\nreasonable doubts.\n<\/p>\n
        17.4.   Even  though  Ex.P1 was said to have been recorded by P.W.1 in
\nthe presence of Muniyan, there is no  proper  explanation  by  P.W.1  for  not
\ngetting the  said  statement  attested by the said Muniyan.  Though a specific
\nquestion was put to P.W.1  in  the  cross  examination  for  not  getting  the
\nsignature of Muniyan as attestor to Ex.P1, there was no convincing explanation
\nfor the same, nor the prosecution explained for not examining the said Muniyan
\nto  establish  that  the  extra  judicial  confession  (Ex.P1)  had  been made
\nvoluntarily.\n<\/p>\n
        17.5.  When sufficient evidence was available to  establish  that  the
\nextra-judicial  confession (Ex.P1) was made voluntarily by examining the other
\nonly witness, namely, Muniyan, who was said to  be  present  at  the  time  of
\nrecording  the  extra judicial confession (Ex.P1), I do not see any reason for
\nnot  examining  the  said  Muniyan  to  prove  that  the  said  extra-judicial
\nconfession  statement  (Ex.P1)  was  made  voluntarily, which in my considered
\nopinion, is the first set back to the case of the prosecution.\n<\/p>\n
        17.6.  Assuming the motive of murder said to have been relied upon  by
\nthe   prosecution   corroborates  with  the  confession  relied  upon  by  the
\nprosecution under Ex.P1, such motive, by itself, is not sufficient to conclude
\nthat extra-judicial confession (Ex.P1) was made voluntarily.  In this  regard,
\nwe  should  not forget that Ex.P1 is not a judicial confession made before the
\nMagistrate, which  is  protected  under  Section  164  Cr.P.C.      with   due
\nprecautions.   The recording of confession by the Magistrate under Section 164
\nCr.P.C.  is  very  much  reliable,  as  the  same  satisfies  the  precautions
\ncontemplated thereunder.    In  other words, even the judicial confession made
\nbefore the Magistrate if lacks the  precautions  contemplated  thereunder,  is
\nliable  to  be  rejected,  in  the  absence  of any positive evidence that the
\nprecautions required under Section 164 Cr.P.C.  were taken and  a  certificate
\nrequired under  Section  164(3)  Cr.P.C.    was  not made duly appended to the
\nrecorded confession.  In the instant case, as already found, the extrajudicial
\nconfession statement (Ex.P1) relied upon  by  the  prosecution  could  not  be
\nrelied  upon  as  there  is  no  proper explanation by the prosecution for the
\nfailure in examining the Village  Assistant,  Muniyan,  who  was  said  to  be
\npresent  at  the  time  of  recording  the extra-judicial confession statement
\n(Ex.P1).\n<\/p>\n
        17.7.  Coming to the other confession said to have been  made  by  the
\naccused in  the  Police  Station  at  about  10.45  a.m.   on 17.5.1989 in the
\npresence of P.W.1  and  one  Nyna  Gounder,  as  already  observed,  the  said
\nconfession  statement  was neither produced before the Court nor marked during
\nthe trial.  Even though P.W.1 had also stated that a confession statement  was
\nrecorded  by  the  Investigating Officer (P.W.10) in the presence of P.W.1 and
\nthe said Nyna Gounder, and both of them attested the same, the said confession
\nstatement was neither produced before the Court, nor marked during the  trial,
\nnor  the  said  Nyna  Gounder  was  examined  on  behalf  of  the prosecution.
\nTherefore, the reliance placed on the confession statement said to  have  been
\nmade before the Investigating Officer (P.W.10) is also liable to be rejected.\n<\/p>\n
        18.1.   P.W.1  deposed that after recording Ex.P1, he took the accused
\nalong with the said Muniyan to the scene of occurrence and found the  body  of
\nthe  deceased  was  floating  and thereafter, proceeded to Papparapatti Police
\nStation to hand over the accused at 8.30 a.m.    on  17.5.1  989.    The  Head
\nConstable (P.W.8), who  registered  the  F.I.R.    at 9.30 a.m.  on 17.5.1989,
\ndeposed that the accused was handed over to him at Papparapatti Police Station
\nonly at 9.30 a.m.  There is absolutely no explanation by P.W.1 as to what  had
\nhappened between  8.30  and  9.30  a.m.    after  reaching Papparapatti Police
\nStation.  Had the accused been produced at 8.30 a.m., what was the reason  for
\nP.W.8  to  depose  that the accused was taken on judicial custody only at 9.30
\na.m.  while P.  W.10 deposed that he arrived at  Papparapatti  Police  Station
\nonly at  10  .45  a.m.    and  recorded the second confession statement in the
\npresence of P.W.1 and one Nyna Gounder, who was not examined.  I  do  not  see
\nany  justified  reason  for  the lapses on the part of the prosecution for not
\nexamining the said Nyna Gounder.\n<\/p>\n
        18.2.  P.W.1 further  deposed  that  he  along  with  P.W.10  and  one
\nShanmugam  came  to  the  scene  of  occurrence at 12 noon on the same day and
\nP.W.10 prepared  Ex.P4  Observation  Mahazar  and  Ex.P8  Rough  Sketch,  duly
\nattested by  P.W.1 and the said Shanmugam, who was not examined.  In the cross
\nexamination, P.W.1 deposed that he had prepared three copies of report at 8.30
\na.m.  when he came to the scene of occurrence along with the accused  and  the
\nsaid Muniyan, and forwarded one copy to the Magistrate.  Except the one, which
\nwas  forwarded  to  P.W.8,  the  other  two  copies of the statement or report
\nwhatever prepared at the place of occurrence at  8.30  a.m.    have  not  been
\nproduced before  the Court.  The lapses on the part of the prosecution in this
\nregard create serious doubt on the case of the prosecution.\n<\/p>\n
        19.1.  The next evidence relied upon by the prosecution is the  direct
\ntestimony of P.W.4, against whom an attempt was made by the accused to murder,
\nattracting Section  307 I.P.C.  No doubt, when a direct injured ocular witness
\nis available the motive is irrelevant, and therefore, assuming the evidence of
\nP.W.1 is unreliable, the prosecution could rely upon the evidence of P.W.4  as
\na direct injured ocular witness.\n<\/p>\n
        19.2.   As  per the testimony of P.W.4, he was standing on the western
\nside of the well when he was pushed into the well by the accused.  Even though
\nP.W.4 deposed that the accused pushed him and the deceased into the  well  and
\nleft  the  scene  of  occurrence,  there is no explanation as to how the third
\nparties namely, Parvathi, Madhu and Mani, arrived at the scene  of  occurrence
\nat about  3  a.m.    on  17.5.1989,  and  assuming  the  same is true, why the
\nprosecution had not recorded statements from any of the said  persons.    That
\napart,  the  investigation is silent as to whether the persons who came to the
\nscene of occurrence first reported to the Village Assistant, Muniyan, who  was
\navailable  in  the same village, or the Village Administrative Officer (P.W.1)
\nor the police about the occurrence, and if not, the reason for their silence.\n<\/p>\n
        19.3.  P.W.4 further  deposed  that  many  people  came  to  the  spot
\nimmediately and P.W.5 bailed him out and thereafter, he was taken to K.N.  Rao
\nHospital at  Salem.    When P.W.4 had deposed that he was taken by a cart till
\nthe main road, which is 1 km away from the scene of occurrence and thereafter,
\nby a taxi, which was brought by one Shamugam, there is no  proper  explanation
\nfrom  the prosecution for not examining the said Shanmugam or the Taxi Driver.
\nThis again is considered to be a deficiency in the investigation.\n<\/p>\n
        19.4.  P.W.4 also deposed that he was conscious when he was  taken  to
\nthe hospital, and became unconscious thereafter.  But, the Doctor (P.W.2), who
\ntreated  P.W.4 could not explain any grave nature of the injuries on P.W.4 nor
\nproduce any material evidence such as x-ray to  substantiate  that  P.W.4  was
\nseriously injured  during  the  occurrence.    On the other hand, P.W.4 in his
\ncross examination, had stated that he was examined by  P.W.10  only  after  10
\nmonths.  The whereabouts of P.W.4, during the said period of 10 months was not
\neven properly explained by the prosecution; nor the Investigating Officer gave
\nany  acceptable or convincing reason for not enquiring P.W.4 immediately after
\nthe occurrence.  This again is considered to be a blow  on  the  case  of  the
\nprosecution,  particularly  when  the  accused was charged and convicted under
\nSection 307 I.P.C.  for having attempted to murder P.W.4.\n<\/p>\n
        19.5.  A closer scrutinisation of the testimony of P.W.4 would clearly
\nreflect that he never bothered about his paramour, namely the deceased, either
\nwhen both of them were pushed into the well  or  thereafter.    Analysing  the
\nevidence  of  P.W.4 through his conduct, it is difficult to accept his version
\nof evidence.\n<\/p>\n
        20.1.  Apart from the evidence of P.W.1 and P.W.4, we  are  left  with
\nthe  evidence  of other corroborative witnesses, viz., the medical evidence of
\nP.W.2 and P.W.3; the evidence of P.W.5 and P.W.6 who spoke about the  rescuing
\nand shifting of P.W.4 for this treatment; the evidence of P.W.7, the father of
\nP.W.4; and the evidence of Investigating officers P.W.10 and P.W.11.\n<\/p>\n
        20.2.  P.W.5, deposed that he came to know about the incident at about
\n3 a.m.   on  17.5.1989  from one Mani, but the said Mani was not examined.  In
\nthe absence of clear evidence as  to  the  source  of  information,  the  very
\narrival  and  the presence of P.W.5 at the place of occurrence at about 3 a.m.
\non 17.5.1989 was doubtful.  Even though P.W.5  incidentally  refers  that  one
\nShanmugam, Ammasi, Vijayagopal, Parvathi also knew about the incident, none of
\nthem were examined.  According to the statement of P.W.5, P.W.7, the father of
\nP.W.4,  was very much present at the place of occurrence at the earliest point
\nof time, namely, 3 a.m.  along with fifty persons.  This  apparently  reflects
\nthe total dereliction of duty on the part of the Investigating Officer for not
\nhaving enquired  P.W.7  immediately  after the occurrence.  It took almost one
\nyear for the Investigating Officer to enquire P.W.7, who was also residing  in
\nthe  very  same  village  and  moving  around  as the President of the Village
\nPanchayat.  Moreover, P.W.7, the father of P.  W.4, himself had stated in  his
\nevidence  that  he  was  present  at  the  scene  of  occurrence  when  P.W.10
\nInvestigating Officer  came  at  12  noon  on  17.5.1989  and  prepared  Ex.P4
\nObservation Mahazar  and  Ex.P8  Rough Sketch.  But, P.W.10 has stated that he
\ncould not identify the parents of P.W.4.  The  conduct  of  the  Investigating
\nOfficer   in  this  regard  shows  a  serious  doubt  about  the  standard  of
\ninvestigation as well as his integrity.\n<\/p>\n
        20.3.  Even though P.W.4 was shifted to K.N.Rao Hospital at Salem by a
\ntaxi,  as  deposed  by  P.W.6,  the  taxi  driver  was  not  examined  by  the
\nprosecution.   That  apart,  the want of explanation by P.W6 for not informing
\nthe incident to the police, even after admitting P.W.4  in  K.N.Rao  Hospital,
\nSalem, further creates a doubt on the case of the prosecution.\n<\/p>\n
        20.4.   The other corroborative witness relied upon by the prosecution
\nis P.W.7, the father of P.W.4.  Admittedly, P.W.7 was present in  the  village
\non the  fateful  night.   The evidence of P.Ws.1, 5, 6, 7 and 1 0 would depict
\nthat P.W.7 was seen in the place  of  occurrence  at  8.30  a.m.    itself  on
\n17.5.1989 along  with one Chinnasamy, Raman, and Munusamy.  However, there was<\/p>\n
no explanation by P.W.7 for not accompanying his son (P.W.4) to the  hospital;
\nnor  there  was  any  explanation  by  the  prosecution  for not recording any
\nstatement from P.W.7 immediately thereafter.\n<\/p>\n
        20.5.  The other  two  corroborative  witnesses  relied  upon  by  the
\nprosecution are  P.W.2  and P.W.3, the medical witnesses.  There are about 2 1
\ninjuries found on the body of the deceased as per the Post Mortem  Certificate
\n(Ex.P7),  which  corroborates  with  the evidence of P.W.3, who conducted post
\nmortem on the body of the deceased (Dayawathi).  On the other hand, when P.W.4
\nwas also pushed into the same well, as per the evidence of P.W.2, the  Medical
\nOfficer  read  with Wound Certificate (Ex.P5), only two injuries were found on
\nthe body of P.W.4.   Both  were  pushed  from  the  same  place  in  the  same
\ndirection.   If  that is so, the prosecution had not explained as to how P.W.4
\ncould sustain only two injuries when the deceased sustained 21  injuries.    I
\nhave  already  opined  that  the injuries sustained by P.W.4 and the treatment
\nsaid to have been given to him are  all  unbelievable  for  want  of  material
\nevidence to  corroborate  the  same.  Therefore, the very presence of P.W.4 in
\nthe scene of occurrence and the charge that the accused pushed P.W.4 into  the
\nwell,  attempted  to  murder him, and thereby P.W.4 sustained serious injuries
\nare all held to be not proved, particularly when the prosecution had not taken
\nany steps to enquire P.W.4  for  nearly  10  months,  when  P.W.4  was  taking
\ntreatment  in  K.N.Rao  Hospital,  Salem, which is very near from the place of
\noccurrence.  Therefore, the evidence of medical witness (P.W.2) could  not  be
\nrelied upon.\n<\/p>\n
        20.6.   I  have  already  pointed  out  the  lapses on the part of the
\nInvestigating Officers, namely P.W.10 and P.W.11.  To pin point,  as  per  the
\nthe prosecution  case  P.W.7,  the  father of P.W.4, was present at 3 a.m.  on
\n17.5.1989 along with fifty  persons,  and  again  thereafter  at  12  noon  on
\n17.5.1989  when  the  investigating  officer  (P.W.10)  came  tot  he scene of
\noccurrence for preparing Observation Mahazar  (Ex.P4)  and  the  Rough  Sketch
\n(Ex.P8).   In  spite  of  the  presence  of  P.W.7,  the Investigating Officer
\n(P.W.10) failed to record any statement from him, even though, by  that  time,
\nP.W.4 was bailed out and shifted to K.N.  Rao Hospital at Salem.  On the other
\nhand,  the  Investigating  Officers, P.W.10 and P.W.11, had taken nearly about
\none year to enquire P.W.7 and record his  statement,  which  is  an  incurable
\nlapse  on  the  part  of  the investigation and an unpardonable excuse for the
\ndereliction of the public duty cast on the Investigating Officers, P.W.10  and
\nP.W.11.  Therefore, the evidence of P.W.10 and P.W.11 are not trustworthy.\n<\/p>\n
        21.  A closer scrutinisation of the evidence of the prosecution would,
\ntherefore,  go  to show that there are grave deficiencies in the investigation
\nand the prosecution failed to prove the charges beyond all reasonable  doubts.
\nIn  the  premises  aforesaid, I am inclined to allow the appeal, set aside the
\njudgment dated 26.8.1996 rendered by the  learned  Principal  Sessions  Judge,
\nDharmapuri  at  Krishnagiri,  in  S.C.No.43  of  1992; and acquit the accused.
\nConsequently, there will be a direction to cancel the bail bonds  executed  by
\nthe accused.\n<\/p>\n
Index   :       Yes\nInternet        :Yes\n\natr\/sasi\n\nCopies to:-\n\n1.The Principal Sessions Judge,\nDharmapuri at Krishnagiri (with records).\n\n2.The Judicial Magistrate No.I,\nDharmapuri.\n\n3.The Judicial Magistrate No.I, Dharmapuri,\nthrough the Chief Judicial Magistrate,\nDharmapuri at Krishnagiri.\n\n4.The Inspector of Police,\nPapparapatti Police Station,\nDharmapuri.\n\n5.The Public Prosecutor,\nHigh Court,\nMadras.\n\n6.The Section Officer,\nCriminal Section,\nHigh Court, Madras.\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Harichandran @ Saravanan vs State on 12 March, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 12\/03\/2003 Coram The Hon’ble Mr.Justice P.D.DINAKARAN Criminal Appeal No.649 of 1996 Harichandran @ Saravanan .. Appellant -Vs- State, rep. by Inspector of Police, Papparapatti Police Station Crime No.150\/89. .. Respondent Prayer:- Appeal against the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-172603","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nHarichandran @ Saravanan vs State on 12 March, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/harichandran-saravanan-vs-state-on-12-march-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Harichandran @ Saravanan vs State on 12 March, 2003 - 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