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2013 Supreme(Mad) 2485
In the High Court of Judicature at Madras
V.DHANAPALAN and C.T.SELVAM, JJ.
Thesappan- Appellant/Accused No.1
vs
State Rep. by The Inspector of Police - Respondent/Complainant
Criminal Appeal No.634 of 2011
Decided On : 18.07.2013
Advocate Appeared:
For petitioner: Mr.T.Muruganantham
For Respondent: Mr.V.M.R.Rajenthiran Addl. Public Prosecutor
The importance of credible witness testimony, examination of material witnesses, and conducting necessary forensic tests in establishing a strong prosecution case.
Headnote:
IPC - Offences under Sections 376 and 302 - [IPC 376, IPC 302] - The court discussed the delay in FIR registration, lack of credible witness testimony, non-examination of material witnesses, and failure to conduct DNA test, leading to the acquittal of the accused.
Fact of the Case:
The appellant, accused no.1, was convicted for offences under Sections 376 and 302 IPC for raping and murdering a minor. The prosecution's case relied on witness testimony and forensic evidence.
Finding of the Court:
The court found the delay in FIR registration unexplained, witness testimony not credible, non-examination of material witnesses, and failure to conduct DNA test, leading to the acquittal of the accused.
Issues: Delay in FIR registration, credibility of witness testimony, non-examination of material witnesses, failure to conduct DNA test.
Ratio Decidendi: The court's decision was influenced by the lack of credible evidence, non-examination of material witnesses, and failure to conduct a DNA test, leading to the acquittal of the accused.
Final Decision: The appeal was allowed, and the accused was acquitted due to the prosecution's failure to establish a credible case.
(Order of the Court was made by C.T.SELVAM,J.,)
The Appellant/Accused No.1 is one of the accused, who stood trial in case tried by learned Sessions Court, Nagapattinam in S.C.No.80 of 2009. While the second accused stands acquitted, this Appellant/Accused No.1 stands convicted for offences under Sections 376 and 302 IPC and sentenced to undergo life imprisonment and fine of Rs.20,000/- i/d 3 years S.I. for the offence under Section 302 IPC and to undergo life imprisonment and fine of Rs.20,000/- i/d 3 years S.I. for the offence under Section 376 IPC.
2.The prosecution case is as follows:-
i)The 1st and 2nd accused were friends of P.W.1. They all belong to fishermen community. The appellant/accused no.1 came to Seruthur Village and resided in a portion of the house belonging to one Vaiyapuri. The appellant/accused no.1 used to take his meals at the house of P.W.1. A2 was also a resident of the said Village.
ii)Four months prior to the occurrence, the appellant/accused no.1, towards sexually exploiting the elder daughter of P.W.1, by name Jagadeeswari, took her to a nearby place. They were spotted by one Arumugam and thus such attempt was thwarted. After such incident, the appellant/accused no.1 was denied food in the house of P.W.1.
iii)While so, at about 12:00 noon on 23.09.2007, the appellant/accused no.1 lured the minor daughter of P.W.1, by name Madhivadhani to a nearby house which was under construction and raped her. At such time, A2 was keeping watch.
iv)Towards preventing the deceased from raising a cry, the appellant/accused no.1 choked her neck and strangulated her. The deceased died of asphyxia due to smothering.
v)Complaint regards occurrence was preferred by P.W.1 at about 01:00 p.m. on 24.09.2007. On receipt thereof, P.W.12, Inspector of Police, Keelaiyur Police Station, registered a case in Crime No.239 of 2007 for offences under Sections 376 and 302 IPC. The FIR is Ex.P.20. Thereafter, P.W.12 sent the FIR to Court through P.W.9, a Head Constable. He went to the scene of occurrence on the night of 24.09.2007. At about 6:00 a.m. the next day, he visited the spot and prepared observation mahazar (Ex.P2) in the presence of P.W.5 and another. He prepared rough sketch (Ex.P21) and conducted inquest in the presence of Panchayathdars between 6:45a.m and 7:45 am. The inquest report is Ex.P22. After completion of inquest, he sent requisition (Ex.P3) for post mortem of the deceased to the Government Hospital, Nagapattinam.
vi)In continuation of his investigation, he examined P.W.1, P.W.4 and two others and recorded their statements. At about 09:45am he seized a plastic jug under recovery mahazar Ex.P2 from the spot in the presence of P.W.5 and another and the same was sent to Court. After post mortem, the clothes worn by the deceased were handed over to him by P.W.9 under a special report (Ex.P18) and he sent the same to Court. The seized clothes are M.Os.1 & 2. On 25.09.2007, P.W.12 arrested the accused persons and recorded their confession statements in the presence of P.W.7 and another. At about 5:00 p.m., he recovered a blood stained lungi (M.O.3) worn by A1 under recovery mahazar Ex.P.7and thereafter on 26.09.2007, he had remanded the accused to judicial custody. He sent a requisition for medical examination of the accused (Ex.P23). On 27.09.2007, he examined Jagadeeswari and recorded her statement. On 15.10.2007, he examined P.W.6, Doctor, who conducted the post mortem and obtained her statement. He examined P.W.10 and recorded his statement. He examined the photographer and recorded his statement. He once again examined P.W.6, Doctor on 22.10.2007 and recorded her statement. On 27.12.2007, he obtained the draft charge sheet from the Government Advocate and on completion of investigation, he filed a charge sheet for offences under Section 376 and 302 IPC against A1 and Sections 376 r/w 123, 302 r/w 120B IPC.
vii)The post mortem of the deceased was conducted by P.W.6 and the post mortem report reads as under:
"No.163/07
P
