2019 Supreme(Mad) 1439

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P.N. PRAKASH, B. PUGALENDHI, JJ.
The State Rep. by the Inspector of Police Odaipatti Police Station – Appellant
Versus
Sundararaj and Others – Respondents
R.T. (MD) No. 3 of 2018, Crl. A. (MD) Nos. 58, 59 of 2019
Decided On : 21-03-2019

Headnote:

Indian Penal Code,1860 - Section 302 - Criminal Procedure Code,1973 - Sections 53-A,172 ,207,313,366,374(2) - Protection of Children from Sexual Offences Act 2012 - Evidence Act,1872 - Section 145 - Challenge - Appeal against conviction - Offence of Murder - Deceased in this case was a minor girl her date of birth being and at time of her death she was studying V standard - She is daughter of one late - After death of married - Family was living in Kamatchipurram Village - Victim girl returned from school sometime in afternoon and told her mother around that she is going to house of her elder maternal aunt situated in adjoining hamlet - Thereafter her whereabouts were not known - Her parents and other villagers searched for her but in vain - Therefore lodged a written complaint based on which Special Sub-Inspector of Police registered a case in Crime hours and prepared printed First Information Report which reached jurisdictional Magistrate at as could be seen from endorsement made therein - While search was on noticed body of a girl floating in well of one around and informed villagers - On getting information and other villagers went to said well and police were also informed - Fire Service personnel came there and retrieved body from well - Body was identified by as that of her daughter - Body was despatched to Government Hospital Theni through Head Constable and it was examined by who made necessary entries in Accident Register copy of which has been marked as wherein it is stated as under Brought dead received one girl body at - Body sent to Mortuary - Investigation of case was taken over by Inspector of Police who came to mortuary and conducted inquest over body of victim girl and inquest report was marked as - He gave a requisition to hospital authorities for postmortem and accordingly performed autopsy over body of victim girl and issued postmortem certificate - Whether he has engaged any counsel in referred trial at least Court directed his production before us - Whether appellants are perpetrators of this ghastly crime - Whether accused had undergone circumcision or about presence of smegma in their private parts - Whether lapse was innocent or blameworthy - Each erring officer must suffer consequences of his lapse by appropriate departmental action whenever called for - Whether there has been any attempt to shield real culprits - Held, Court are aware that a rustic witness cannot be expected to give timings correctly because no one would consult his watch on every occasion anticipating that he/she may be required to give evidence later - However what we are surprised to find is that all these three witnesses viz are relatives of victim girl and are also known to accused - They were aware that victim girl had gone missing in evening of - They also joined in search of victim girl - However none of them had taken any step to find out from accused about whereabouts of victim girl - It must be remembered that accused are also from same village and they are not strangers to family of victim girl or to said witnesses - Accused also did not abscond from village - In fact it is case of prosecution that even came to house of victim girl in evening and asked for a photograph of hers for tracing her - From this it is obvious that was in village even after core feature of scheme is that every criminal advocate without exception who wishes to practise at one of upper levels must undertake judicial assessment at outset - No criminal advocate competent or incompetent can slip through that net and every client has protection that whoever represents him in a case at an upper level will have been subject to such assessment - It is well to remember that in cases where evidence is of a circumstantial nature circumstances from which conclusion of guilt is to be drawn should in first instance be fully established and all facts so established should be consistent only with hypothesis of guilt of accused - Again circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but one proposed to be proved - In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with innocence of accused and it must be such as to show that within all human probability act must have been done by accused - Every time there is an acquittal consequences are just same as have been noticed hereinabove - Purpose of justice has not been achieved - There is also another side to be taken into consideration - Court have declared respondent-accused innocent by upholding order of High Court giving him benefit of doubt - He may be truly innocent or he may have succeeded because of lapses committed by investigating/ prosecuting teams - If he has escaped despite being guilty investigating and prosecution agencies must be deemed to have seriously messed it all up - If accused was wrongfully prosecuted his suffering is unfathomable - Here also investigating and prosecuting agencies are blameworthy - It is therefore necessary not to overlook even hardship suffered by accused first during trial of case and then at appellate stages - An innocent person does not deserve to suffer turmoil of a long-drawn litigation spanning over a decade or more - Expenses incurred by an accused in his defence can dry up all his financial resources -Ancestral or personal - Criminal litigation could also ordinarily involve financial borrowings - An accused can be expected to be under a financial debt by time his ordeal is over - On culmination of a criminal case in acquittal investigating/prosecuting officials concerned responsible for such acquittal must necessarily be identified - A finding needs to be recorded in each case whether lapse was innocent or blameworthy - Each erring officer must suffer consequences of his lapse by appropriate departmental action whenever called for - Taking into consideration seriousness of matter official concerned may be withdrawn from investigative responsibilities permanently or temporarily depending purely on his culpability - Court also feel compelled to require adoption of some indispensable measures which may reduce malady suffered by parties on both sides of criminal litigation - Accordingly Court direct Home Department of every State Government to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers - All such erring officials/officers identified as responsible for failure of a prosecution case on account of sheer negligence or because of culpable lapses must suffer departmental action - Above mechanism formulated would infuse seriousness in performance of investigating and prosecuting duties and would ensure that investigation and prosecution are purposeful and decisive - Instant direction shall also be given effect to within months - Ordered Accordingly