Dr. P. Devadass, J.—The appellant is sole accused in the Sessions Case in S.C.No. 194 of 2009 on the file of the learned Principal Sessions Judge, Tiruvellore.
2. On 14.08.2012, the learned Principal Sessions Judge found the accused guilty under Section 302 IPC and sentenced him to life imprisonment with a fine of Rs.1,000/- with default sentence of rigorous imprisonment for one year.
3. The case of the prosecution briefly runs as under:-
(i) The accused and the deceased were friends. The accused and the wife of the deceased (DW-1) developed illegal intimacy. PW-3 sister of deceased knows about this.
(ii) In the circumstance, on 17.06.2009, at about 9.45 p.m., at Rukmanidevi junction, Kamaraj Salai, in Indira Nagar the accused stabbed the deceased with knife (MO-10). PW-2 witnessed the occurrence. On information, PW-1, the father of the deceased came to the scene place. Seen the dead body of his son.
(iii) On the same day, at about 10 p.m., at the Valasaravakkam Police Station, PW-1 gave Ex.P-1 complaint to PW-11 Inspector of Police. He registered this case for an offence under Section 302 IPC (Ex.P-11 FIR). He sent the express FIR to the Court.
(iv) PW-11 took up his investigation. He visited the scene place. Prepared Ex.P-2 Observation Mahazar in the presence of PW-5 and another person. Drew Ex.P-12, Rough Sketch of the scene place. Seized Nokia cell phone (MO-4), bloodstained earth (MO-7) and sample earth (MO-8) under Ex.P-3 Mahazar in the presence of the said witnesses. He examined the witnesses and recorded their statement. In the presence of panchayatdars, he held inquest over the dead body [Ex.P.13 inquest report]. Sent the dead body to Government Hospital, Royapettah through Constable Lakshmi Narayanan to conduct post-mortem.
(v) On 18.06.2009, at about 12.50 p.m., at the said hospital, PW- 10 conducted autopsy on the dead body of the deceased and he had noticed 25 cut injuries on various parts of the dead body and all the injuries are fresh and antemortem in nature. He opined that the deceased died of haemorrhage and shock due to the injuries between 12 to 16 hours prior to autopsy (Ex.P-10 Postmortem Certificate).
(vi) On 18.06.2009, at about 4 p.m., near Radhakrishnan Street junction, Velan Nagar, in the presence of PW-6 and another person, PW-11 arrested the accused. Recorded Ex.P-4 disclosure statement of the accused in the presence of said witnesses.
(vii) At the instance of the accused, from a place near Indira Nagar Hospital, PW-11 seized bloodstained shirt (MO-9), knife (MO-10) in the presence of said witnesses. Sent the accused to Court for judicial custody. Produced the case-properties to Court with his requisition Ex.P-14 for sending them to Lab for chemical analysis.
(viii) After receiving the Scientific Reports (Exs.P-6, P-7 and P-16) concluding his investigation, PW-11 filed the Final Report for an offence under Section 302 IPC as against the accused in the committal Court.
4. The committal Court after complying Section 207 Cr.P.C. requirement, committed the case to the Court of Sessions, Tiruvellore.
5. The Trial Court upon hearing both sides and on consideration of the case-records framed a charge under Section 302 IPC as against the accused. The accused pleaded not guilty to the charge.
6. Prosecution examined PWs-1 to 11, marked Exs.P-1 to 16 and exhibited MOs-1 to 10.
7. The learned Principal Sessions Judge examined the accused under Section 313 Cr.P.C on the incriminating aspects appearing in the prosecution evidence. He denied his complicity in this case. He has examined DW1-Kala/wife of the deceased.
8. Appreciating the said evidence, the Trial Court held the accused guilty under Section 302 IPC and sentenced him as stated already in paragraph No. 2, supra.
9. Mr. N.R. Elango, the learned Senior Counsel for the appellant contended that the hope of the prosecution is on PW-2, but, it is self evident that he has not witnessed the occurrence. He has been just introduced in this case as an eye witness. The other witnesses have not spoken about the presence of PW-2 at the scene place. There is no clearcut information about one David, who is also stated to be an eye witness. There is delay in lodging the FIR. The delay remained unexplained. Prosecution has failed to establish the case against the accused beyond all reasonable doubts.
10. On the other hand, the learned Additional Public Prosecutor would contend that the evidence of PW-2 is clear-cut. His testimony pins the accused to the charge. In the circumstances, the Trial Court has rightly convicted and sentenced him.
11. We have anxiously considered the arguments of both sides, perused the entire materials on record and the impugned judgment of the Trial Court.
12. A motive has been attributed to implicate the accused in this case. The accused is stated to have illegal contact with the wife of the deceased/DW-1. As regards this aspect, PW-3, sister of deceased, has been examined. The motive is double-edged sword, it could be either way.
13. PW-4 a grocery shop keeper, has not witnessed the occurrence, but, he had spoken that he has seen the accused with bloodstained clothes. It is quite against common sense and in cross-examination, even that weak evidence has gone.
14. The most important witness in this case is PW-2. PW-2 has deposed in his chief-examination that he has witnessed the entire occurrence. A close scrutiny of his evidence in his chief itself would disclose that he has seen the occurrence at a distance and in his cross-examination he had stated that at that time there was complete darkness. So, he could not have seen the occurrence.
15. Further, it is pertinent to note that the delay in sending the statement recorded under Section 161 Cr.P.C. to the Court may not vitiate the entire case, but this delay assumes signal importance in certain circumstances. In this case, the statement recorded under Section 161 Cr.P.C., from P.W.2 reached the Magistrate''s Court after a long delay. It tells upon the acceptability of the veracity of the evidence of P.W.2. There is appreciable delay in lodging the F.I.R. The time gap has not been explained.
16. In view of the foregoings, what remains is the suspicion and surmises. However, they may be strong, they may not take the place of legal proof. The prosecution has not established the charge against the accused beyond all reasonable doubts.
17. In the result, this Criminal Appeal is allowed. The conviction recorded and the sentence awarded to the appellant in the Sessions Case No. 194 of 2009 by the learned Principal Sessions Judge, Thiruvallur, is set aside. The appellant is acquitted. Fine amount, if paid, shall be refunded to him. The bail bond, if any executed by the appellant/accused, shall stand discharged.
