- (1.)THIS Appeal is filed against the judgment dated 15. 4. 1999, made in 14 of 1996 on the file of the III Additional Sessions Judge, Pondicherry .
(2.)AGGRIEVED over the conviction for the offence under section 506 Part and sentence of 2 years'Rigourous Imprisonment, this Appeal has
The brief facts of the case are as follows: (a) A-1 and A-2 are brothers. P. W. is the husband of p. W. 2. P. W. 4 is the daughter of P. Ws. 1 and 2. The deceased is the daughter of p. Ws. 1 and 2. P. Ws. 3 and 5 are the brother of the deceased. The deceased and her husband (A-1) lived along with A-2 and his wife and their family in the same house. Therefore for about one month prior to the occurrence there were frequent quarrels between the deceased and wife of A-2. (b) On 6. 12. 1994, the deceased on seeing her father, p. W. 1 requested him to take her to his house and complained about the ill-treatment made by her husband (A-1 ). She also told that the second accused beat her and ill-treated her. A-1 reprimanded her for complaining about him to p. W. 1, her father. After that, A-1 took her for fishing. P. W. 1 informed A-1 that it is not the right time for fishing and went home. After sometime, Al came to the house of P. W. 1 with the wet cloth and asked P. W. 5, whether his sister namely, Pesingi Ramoji, had returned back, for which, P. W. 5 replied negative. At that time, A-2 came and asked A-1 as to why he is speaking with p. V. 5 instead of killing his wife Ramoji and putting her in a gunny bag. Thereafter, Al and A2 returned in cycle. (c) P. W. 5 informed about this matter to his father when he returned home. Immediately, P. W. 1 went in the direction in which A-1 and A-2 had gone. Near a canal, P. W. 1 saw A-2 pushing a body. P. W. 1 questioned A-2, whether he killed his daughter. But, A-2 asked P. W. 1 to go near the canal. P. W. 1 also went to the place of the canal where he saw his daughter's body floating on the water. He took the body with the help of P. W. 7 to the other side of the river. Then, they brought the body to the house of A-1 and A-2 and asked why they have murdered his daughter. Both A-1 and A-2 threatened P. W. 1 that he would also face the same fate, if he divulges this matter to the police or to any other person. P. W. 1 also noted that her daughter sustained bleeding injuries on her chest, right ear and head and her blouse was completely torned. Out of fear by the accused, P. W. 1 did not inform the police immediately. After some time, he informed the panchayatdars, namely P. W. 5, P. W. 9, P. W. 10 and P. W. 11 who in turn, informed P. W. 1 to lodge a complaint with the police. (d) On 23. 10. 1994, at about 03. 30 p. m. , P. W. 1 accompanied by P. Ws. 6 and 11 went to the police station and informed about this matter. P. W. 20 Constable recorded the statement narrated by P. W. 1 and obtained the thumb impression of P. W. 1. Ex. P-22 is the complaint given by P. W. 1. (e) In pursuance of the said complaint, a case was registered in Cr. No. 70/94 under Sections 302, 201, 506 Part II r/w 34, I. P. C. by P. W. 21, the Sub-Inspector of Police. Ex. P-23 is the original First information Report (F. I. R. ). P. W. 23, the Inspector of police took up investigation in this matter. The complainant identified the place of occurrence in the burial ground. In the presence of P. Ws. 12 and 13, he prepared ex. P. 1, the observation mahazar. P. W. 19, the photographer took photographs of the scene. The Inspector prepared two separate sketches in the place of occurrence. Ex. P-43 is the sketch of the alleged place where the dead body was found. Ex. P-44 is another rough sketch regarding the cremation ground. At about 06. 30 p. m. P. W. 23 seized M. O. 1, the 19 pieces of burnt remains of bones from the burial ground and also recovered M. 0. 2, the ash and M. O. 3, 6 nos. of burnt sticks. (f) On 24. 12. 1994, P. W. 23 went to Giriampet Village and examined the witnesses, P. W. 7 and others. On 25. 12. 1994, he examined P. W. 15 and recorded his statement. On 26. 12. 1994, at about 05. 00 a. m. , he went to kakkinada and arrested both the accused and produced them before the Court and got police custody for further investigation. At about 07. 20. m. , he examined A-1 and A-2 in the presence of P. W. 14 and recorded their statements. Ex. P-3 is the admissible portion of the confession statement of A-1. (g) On 27. 12. 1994 at about 07. 40 a. m. , on the identification of A-1, M. O. 4, a stick was recovered under a cover of mahazar ex. P-4. On the joint identification of A-1 and A-2, P. W. 23 seized M. O. 6, the boat and. 1. 0. 5, 10 broken pieces of bangles under a cover of Ex. P-5, mahazar. He also took Exs. P-6 to 21, photographs and corresponding negatives of e place of occurrence and the boat. He also examined P. Ws. 15 to 18 and recorded their statements. h) On 25. 12. 1994, P. W. 23 produced both the accused before sub-Divisional Judicial Magistrate, Yanam for remand. He also sent the material objects to the Court for investigation purposes and he gave Ex. P-24, a requisition to P. W. 22, the S. D. J. M, Yanam for chemical report and obtained c. F. S. L. report and also to record the statement of 6 witnesses under Section 164, Cr. P. C. Ex. Ps-25 to 42 are the statements recorded by S. D. J. M. After completion of the investigation, P. W. 23 laid the charge-sheet against the accused under Sections 302, 201, 506, Part II, I. P. C. r/w 34, I. P. C.

On behalf of the prosecution, P. Ws. 1 to 23 were examined, Exs. P-1 to 45 were filed and M. Os. 1 to 6 were marked. On behalf of the accused, no witnesses were examined and no documents were produced.

When the accused were questioned under Section 313, cr. P. C. with regard the incriminating circumstances appearing in the evidence of the prosecution witnesses against them, they denied the same. They stated that there are 2 groups in the village and one group who had a grudge against the accused, foisted the case against them.

Considering the oral and documentary evidences, the learned III Additional Sessions Judge of Pondicherry came to a conclusion that the alleged against the accused under Sections 302, 201 r/w 34, I. P. C. roved, but the offence alleged under Section 506, Part II is proved therefore, convicted and sentenced them for 2 years'Rigourous meat. Aggrieved over the same, this appeal is filed.

(3.)MR. Balamurugan, the learned counsel appearing for the appellants contended that all the witnesses P. Ws. 1 to 11, P. Ws. 13 and 15 have turned hostile and therefore, both the accused were acquitted of the charges under Sections 302 and 201, I. P. C. According to the learned counsel, there is no evidence for committing the offence under Section 506, Part II, I. P. C. He relied on the judgment in Dr. Subramanian Swamy v. C. Pushparaj, 1998 (1) CTC 300.
In paragraph 31 of the judgment, the learned Judge has held the offence under Section 506, Part II in proved because of the statement of P. Ws. 1 and 2 before P. W. 22 which was recorded under Section 164, Cr. P. C. It is true that the threat as well as the other circumstantial evidence about the murder is also mentioned. But, the learned Trial Court Judge did not believe that part of the evidence, but simply convicted for the offence under Section 506, Part II, I. P. C on the ground that the statement under Section 164, Cr. P. C. is about the threat. The statement under Section 164, Cr. P. C. is of no value since it is not corroborated by the witness, while he is examined in the trial.

Mr. A. P. Surya Prakasam, the learned Additional Public prosecute strongly contended that the accused threatened the prosecution witnesses because of which they all turned hostile and in Ex. P-20, the complaint itself, the threat is mentioned. Per contra, Mr. Balamurugan, the learned counsel appearing for the accused contended that P. W. 1 does not know tamil and he cannot lodge Ex. P-22, the complaint because P. W. 20, Constable who recorded the complaint does not know Telugu as admitted by both the witnesses. Therefore, it is not known as to how Ex. P. 25, the complaint is proved. Even the parents and the sisters of the deceased turned hostile. P. Ws. 1 to 11, P. Ws. 13 and 15 are not supporting the prosecution case. Consequently, there is no reliable evidence made by any witness that the accused caused threatened P. W. 1.