BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/03/2010 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN Criminal Appeal No.1571 of 2003 and Criminal Appeal No.1679 of 2003 Karuppusamy .. Appellant / A-2 in Crl.A.1571/2003 Chellapandi .. Appellant / A-1 in Crl.A.1679/2003 Vs. State rep. by Inspector of Police, Tirunelveli Taluk Police Station, Tirunelveli District. Crime No.356/1996 .. Respondent in both
the appeals
Appeals filed under Section 374 of Cr.P.C. against the judgment of
conviction and sentence passed by the learned II Additional District and
Sessions Judge, Tirunelveli in S.C. No.222 of 2000 dated 17.09.2003.
!For Appellant in ... Mr.K.Jeganathan both the appeals ^For Respondent in ... Mr.M.Daniel Manoharan, both the appeals Addl.Public Prosecutor :COMMON JUDGMENT (Judgment of the Court was delivered by P.MURGESEN, J.)
These Criminal Appeals are directed against the judgment of conviction and
sentence passed by the learned II Additional District and Sessions Judge,
Tirunelveli in S.C. No.222 of 2000 dated 17.09.2003.
2. The appellant in Crl.A.No.1571 of 2003 is the second accused and the
appellant in Crl.A.No.1679 of 2003 is the first accused. The respondent is the
complainant.
3. The case of the prosecution is as under:-
P.W.1-Paramanandam and P.W.2-Devadoss are the resident of Sivanthipatti
and they are agriculturists. The deceased Rajaiah is the brother of P.W.1. On
28.06.1996, the son-in-law of P.W.1 was murdered. In retaliation, P.W.1’s
community people had murdered one Arumuga Thevar. P.W.4-Manoharan took part in
the Peace Committee Meeting on 28.06.1996. On 29.06.1996 at about 4.00 a.m.,
P.W.1, P.W.2 and the deceased Rajaiah went to attend the nature’s call. While
they were returning, the accused came and attacked the deceased. P.W.1 gave a
complaint to P.W.7-Subramanian, Sub-Inspector of Police in the Tirunelveli Taluk
Police Station. He received the complaint on 29.06.1996 at 6.30 a.m. under Ex.P1
and registered the same in Crime No.356 of 1996 under Sections 147, 148 and 302
IPC and prepared Ex.P6-First Information Report. He sent the complaint and the
FIR through First Grade Constable-2578 to the Judicial Magistrate No.4,
Tirunelveli. P.W.10-Thondiraj, Inspector of Police took up the case for
investigation. He went to the scene of occurrence at 7.00 a.m. and prepared
Ex.P14-Observation Mahazar and Ex.P15-Rough Sketch. Thereafter he conducted
inquest over the body of the deceased in the presence of Panchayatars and
prepared Ex.P16-Inquest Report. Thereafter he sent the body of the victim for
conducting post mortem, through First Grade Constable-122, under Ex.P12. At 1.15
p.m., he recovered M.O.3-Blood-stained earth and M.O.4-Ordinary earth, under the
cover of Ex.P17-Athakshi. The post mortem was conducted by Dr.Chandrasekaran. At
the time of giving evidence, Dr.Chandrasekaran was no more, hence, P.W.9-
Dr.Paramasivan who worked along with Dr.Chandrasekaran on that day, gave
evidence in this case. After conducting post mortem, Ex.P13-Post Mortem Report
was issued. It is stated in Ex.P13 as under:-
“Injuries noted:-
1. Gaping cut injury 13 x 5 cm x bone deep on the right side of neck
cutting the muscles, major blood vessels, nerves and at the level of C3
vertebra.
2. Cut injury gaping 16×5 cm on the front of left side of neck cutting the
muscles, major blood vessels, nerves and C3 vertebra and spinal cord.
3. Cut injury gaping 13 x 11 cm on the lower part of back of neck cutting
the C5 vertebra, spinal cord, muscles, major blood vessels, nerves wind, pipe
and food pipe.
4. Cut injury 7x3cm x bone deep on the left shoulder partly cutting left
shoulder blade and outer end of left clavicle.
5. Cut injury 3 x . cm x muscle deep on the front of upper part of right
arm.
6. ABRASIONS:- 5 x 5 cm on the right side of forehead.
13 x 8 cm on the left side of forehead and cheek.
13 x 6 cm on the back of left forearm; 12×9 cm on the back of left hand.
HEART: All chambers contained a little blood.
LUNGS: Cut Section pale.
HYOID BONE: Intact.
STOMACH: Empty.
MUCOSA: Pale.
LIVER, SPLEEN AND KIDNEYS: CUT SECTION: Pale.
BLADDER: Empty.
BRAIN: CUT SECTION: Pale.
TIME OF DEATH: About 10 to 12 hours prior to post-mortem examination.
OPINION AS TO CAUSE OF DEATH:
The deceased would appear to have died of shock and haemorrhage due to
multiple heavy cut injuries to the region of neck.”
4. After conducting post mortem, M.Os.1 and 2-Dhoti and Shirt were
recovered from the body of the deceased. At 2.00 p.m., P.W.10 arrested the
accused 1 to 3 in the presence of witnesses Sugunaraj(P.W.3) and Thayappan. The
third accused gave confession statement. Ex.P18 is the admissible portion of the
confession statement of the third accused. On the basis of the confession
statement of the third accused, M.Os.5 to 7-Aruvals were recovered under Ex.P19-
Athakshi. Thereafter, P.W.10 sent the accused 1 to 3 to judicial custody and
sent the material objects to the Court. Thereafter, he recorded the statements
of P.W.3 and one Thayappan. Thereafter, the investigation was taken up by
P.W.11-Inspector of Police. He recorded the statements of witnesses and sent the
same to the Judicial Magistrate No.4, Tirunelveli. Thereafter, he sent the
material objects for conducting chemical examination, to the Court, under Ex.P7.
Ex.P8 is the letter from Judicial Magistrate No.4, Tirunelveli to that effect.
After conducting chemical examination of the material objects, Ex.P9-Chemical
Examination Report was issued. Ex.P10 is the Serological Report. On 19.08.1996,
P.W.11 recorded the statements of the Lineman-Subbaiah, P.Ws.5 and 6 and also
the Doctor who conducted post mortem over the body of the deceased. On
23.08.1996, he sent a requisition to the Tahsildar, Palayamkottai to issue
Community Certificates to the victim and the accused. Ex.P20 is the Community
Certificates issued to that effect. Thereafter, P.W.11 completed the
investigation on 28.08.1996 and filed charge sheet against the accused under
Sections 147, 341, 302 r/w 109 IPC and under Section 3(1)(x) of The Scheduled
Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST
Act” in short).
5. Before the Trial Court, P.Ws.1 to 11 were examined and Exs.P1 to P20
and M.Os.1 to 7 were marked. On consideration of the evidence adduced on record,
the Trial Court convicted the accused 1 and 2 under Section 302 IPC and
sentenced each of them to undergo life imprisonment and to pay a fine of
Rs.3,000/- each in default, to undergo 3 years R.I. each. The Trial Court
acquitted the accused 3 to 5.
6. Challenging the conviction and sentences imposed by the Trial Court,
the present Criminal Appeals have been filed by the appellants / accused 1 and
2.
7. On 28.06.1996, the son-in-law of P.W.1 was murdered. In retaliation,
another person by name Arumuga Thevar was murdered by the community people of
P.W.1. Later, on the same day, the deceased Rajaiah was murdered. According to
the prosecution, the accused had murdered him. Evidence of P.W.3 would show that
there were three murders on the same day. P.W.2 turned hostile. Therefore, the
only evidence relied on by the prosecution is the evidence of P.W.1. It is the
stand of the defence that evidence of P.W.1 is not reliable and there cannot be
any eye witnesses to the occurrence. Learned counsel for the appellants /
accused 1 and 2 submitted that there is contradiction with regard to the time of
occurrence. We have perused the evidence on record and found that, in the First
Information Report, it is stated that the occurrence took place at 5.00 a.m.,
but P.W.1, in his evidence, said that the occurrence took place at 4.00 p.m. So,
there is a contradiction with regard to the time of occurrence. It is also seen
from the evidence on record that even though the Police Outpost is present
within 1000 yards from the scene of occurrence, P.W.1 went to the Tirunelveli
Taluk Police Station and lodged the complaint. This was spoken by P.W.7. On the
other hand, P.W.10, who is the Investigating Officer in this case, said that he
received the F.I.R. in the scene of occurrence. So, the evidence of P.Ws.1, 7
and 10 throws a doubt about the time of lodging the complaint.
8. Further, on that day, three murders were committed. Evidence of P.W.4
would show that three murders had been committed on 29.06.1996, and at 3.00
a.m., he saw the accused speaking themselves. According to P.W.4, all the
murders have been committed before 3.00 a.m. He was not cross-examined. If the
murders had been committed at 3.00 a.m. itself, the case of the prosecution that
the occurrence took place at 5.00 a.m. cannot be true.
9. Further, evidence of P.W.10 would show that the S.P., D.I.G. of Police
and higher officials were present in that area. P.W.7, who registered the
complaint, denied it. He went to the extent of saying that it was not a communal
clash. P.W.10 admitted that there was a communal clash and few murders had been
committed and higher officials were camping in that area. Evidence on record
would show that S.P., D.I.G. and higher officials were present in that area. If
really P.W.1 was the eye-witness to the occurrence, he would have rushed to the
higher officials present in that area, but he did not do so. This also creates a
dent in the case of the prosecution.
10. Also, the claim of the prosecution that P.W.1 travelled more than 10
Kms to lodge the complaint to the Tirunelveli Taluk Police Station, is highly
artificial. Moreover, there is a doubt about the name of the accused
Karuppusamy. There are more than one Karuppusamy. Further, there are defects in
the investigation. P.W.11 filed charge sheet against the accused under Sections
147, 341, 302 r/w 109 IPC and under Section 3(1)(x) of SC/ST Act, but in the
cross-examination, it has been admitted by him that he was not aware whether
SC/ST Act is applicable to this case. Evidence on record would show that he did
not investigate the case properly. He filed the charge sheet without properly
analysing the materials on record.
11. On a careful consideration, scrutiny and scanning of the evidence on
record, we have no hesitation in coming to the conclusion that the evidence of
P.W.1 is not trustworthy. The prosecution has failed to prove the case beyond
reasonable doubt.
12. In view of the reasons stated supra, the conviction and sentences
imposed on the appellants / accused 1 and 2 by judgment dated 17.09.2003 passed
by the learned II Additional District and Sessions Judge, Tirunelveli in S.C.
No.222 of 2000 are set aside.
13. The Criminal Appeals are allowed.
KM
To
1.The II Additional District and Sessions Judge,
Tirunelveli.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.