IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/09/2002
CORAM
THE HONOURABLE MR.JUSTICE P.SHANMUGAM
AND
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
CRIMINAL APPEAL NO.131 of 1995
1. Nagarajan
2. Mohan .. Appellants
-Vs-
State through,
Inspector of Police,
Rajapalayam North Police Station. .. Respondent
This Criminal Appeal is preferred under S.374 of Code of Criminal
Procedure against the conviction and sentence passed on the appellants by the
Sessions Judge, Kamarajar District at Srivilliputhur dated 12.1.1995 made in
S.C.No.37 of 1994.
For Appellants : Mr.Mohideen Basha
For Respondent : Mr.V.M.R.Ravindran,
Additional Public Prosecutor
:JUDGMENT
M.CHOCKALINGAM, J.
The appellants have assailed the judgment of the Court of Sessions,
Kamarajar District at Srivilliputhur, wherein they were found guilty under
S.302 read with S.34 of I.P.C. and awarded life imprisonment.
2. Both the appellants/accused stood charged under S.302 read with
S.34 of I.P.C. alleging that on 4.5.1992 at about 11.00 P.M. in front of
Kamarajar Nagar Girls High School, due to prior enmity on money transactions,
both the appellants stabbed the deceased Periasamy indiscriminately, and
consequently, the said Periasamy died instantaneously.
3. The facts which led to the said case, can briefly be stated as
follows:
P.W.1 Mariammal was a resident of Duraisamiapuram, Rajapalayam. The
deceased Periasamy @ Ayyarettu, the son of P.W.1 was residing with her and was
selling Kanja. The deceased owed the first accused Rs.200 /-, which he
borrowed earlier i.e. one day prior to the occurrence. At about 9.30 P.M.,
the deceased was selling ganja before Meenakshi Theatre. P.W.6 Sonaimuthu was
also standing nearby. At that time A-1 who came there made an admission of
the said sum and put his hand into the pocket of the deceased. Looking at
this, P.W.6 intervened and enquired about the same, and the deceased admitted
that he owed Rs.2 00/- to the first accused. P.W.1 advised him to make the
payment earlier. A-1 informed the deceased that he should make the payment
within a week, and otherwise, he has to face dire consequences. On the date
of occurrence viz. 4.5.1992 at about 8.30 P.M., P.W.1 and the deceased were
in the house. One Periasamy and Ayyar called the deceased to come for
hunting. Accordingly the deceased took his dog, a bag and a rope and started
with them. P.W.3 Ramar, P.W.4 Paulraj, P.W.5 Kamaraj, Dharman, Azhagirisamy,
Periasamy and Velusamy all accompanied them. When all of them went near
Meenakshi Theatre, both the accused intercepted the deceased and took him
assailed. The deceased requested the above witnesses, who accompanied them,
to proceed further stating that he would join them later. At about 11.30
P.M., P.W.8 Vanamurthy found both the accused with their shirts with
bloodstain in a School near Rajapalayam Bus Stand. Both the accused came to
the tea shop of P.W.9 Chandran. At or about that time, when P.W.9 and P.W.10
Gopal were present, both the accused washed their hands in the water tub
placed in front of the shop. All the witnesses returned from hunting at about
4.00 A.M. on 5.5.1992. At about 6.00 A.M., as usual P.W.1 woke up, opened
the doors and went outside. She found her dog being tied and the bag and rope
which were taken by the deceased were lying outside. Her younger son
Vellaiyyan came there and informed her that her elder son Ayyarettu was found
murdered near Girls High School. P.W.1 rushed to the site of incident and
found the dead body of her son, the deceased.
4. On coming to know about the incident, P.W.11 Lingam, Village
Administrative Officer accompanied by his menial, went to the place of
occurrence. On 5.5.1992 at about 7.00 A.M., P.W.1 lodged Ex.P1 complaint
before P.W.13 Deivasigamani, Sub Inspector of Police. On the strength of
Ex.P1 complaint, P.W.13 registered a case in Cr.No.253/92 under S.302 of
I.P.C. He despatched Ex.P12 express First Information Report to the concerned
court. On receipt of the copy of the F.I.R., P.W.14 Amalanathan, Inspector of
Police, attached to Rajapalayam Rural Police Station, proceeded to the site of
incident at about 8.00 A.M., inspected the place at about 8.30 A.M., and
prepared Ex.P4 observation mahazar and Ex.P13 rough sketch. He conducted
inquest in the presence of the witnesses between 8.30 A.M. and 11.00 A.M.
and prepared Ex.P14 inquest report. The Investigation Officer recorded the
statement of witnesses. The dead body of Periasamy was sent to Government
Hospital along with Ex.P2 requisition for autopsy through a constable by name
Pandiaraj P.C. 1301. The Investigation Officer recovered M.O.2 bloodstained
earth, M.O.3 sample earth, M.O.4 ganja packet, M.O.8 bloodstained cement
plaster, M.O.9 cement plaster without bloodstain and M.O.10 footwear under
Ex.P5 mahazar.
5. P.W.2 Dr.Paramasivam got Ex.P2 requisition from the Investigation
Officer, commenced and conducted the autopsy on the dead body of Periasamy and
found the following external injuries and the corresponding internal injuries.
1. A stab injury on the right side middle of neck lateral to the
Sternomastoid muscle, 5 cms x 4 cm x upto the deep fascia, the skin over the
injury is missing edges irregular.
2. A stab injury on the centre of front of neck flux below the mandible and
mediale to the Sternomastoid muscle 6 cm x 3 cm x upto the vessels and nerves
with clear cut edges.
3. A stab injury just below the injury No.2 – 4 cm x 3 cm x upto the deep
fascia and muscles.
4. A stab injury on the front of neck just above the Suprasternal notch 6 cm
x 4 cm x blood vessels and muscles with clear cut edges.
5. An incised wound on the left side of middle of neck extending from the
centre of the neck to the Sternomastoid muscles 10 cm x 6 cm x upto the
muscles and thyroid cartilage. Blood vessels nerves, deep fascia and muscles
were out edges are clean and invented viz. blood vessels, external jugular
vein, external carotid arteries.
6. An incised wound on the left side middle of face extending from the infra
orbital region to 5 cm medial to the ear lope 6 cm x 2 cm x upto Superficial
fascia.
7. An incised wound on the left lower part of face extending to the medial
side and front of upper part neck 12 cm x 6 cm x upto the mandible with clear
cut edges.
8. A stab injury on the left side root of neck 3 cm x 2 cm x deep fascia and
muscles with clear cut edges.
9. A stab injury on the lower half of front of chest just 4 cm above the
xipisternum N.C. the muscles inside and the sternum is present 3 cm x 2 cm x
Sternum and heart wound circular.
10. A multiple stab injury on the left Dorsum of n.c. corresponding to the
third and free finger 3 cm x 2 cm x upto the tendons and muscles.
11. A lacerated injury on the left lateral aspect of upper 1/3 of thigh 6 cm
x 3 cm x deep fascia.
12. A stab injury on the left upper 1/3 of lateral side of thigh just 4 cms
above the injury No.7 – 2 cm x 2 cm x deep fascia with cut edges.
On opening of thorax, preserved blood clot underneath sternum. Fracture of
Sternum present.
Heart: A punctured wound in the right article 3 cm x 2 cm upto the muscle
N.C. and heart chambers empty. This is corresponding to injury No.9 of the
external injuries.
P.W.2 Doctor has issued Ex.P3 Postmortem Certificate and has opined that the
deceased would appear to have died of injury to vital organ namely heart, and
haemorrhage 9 to 12 hours prior to postmortem.
6. On 15.5.1992 at about 6.00 A.M., A-1 was arrested at
Malaiyadipatti, when he gave a confessional statement, the admissible portion
of which is marked as Ex.P7. Following the confession, A-1 produced M. O.6
bloodstained shirt and M.O.7 bloodstained knife which were recovered by P.W.14
under Ex.P6 mahazar. Apart from those material objects, A-1 also produced
M.O.5 footwear, which was recovered. On 16.5.1992 at about 8 A.M., A-2 was
arrested. The Investigation Officer made Ex.P8 to the concerned Judicial
Magistrate’s Court to send all the material objects for chemical analysis.
Accordingly, the material objects were subjected to chemical analysis on the
request made by the Judicial Magistrate, Srivilluputhur. The reports of the
Chemical Analyst and Serologist were marked as Exs.P10 and P11 respectively.
On completion of the investigation, the Inspector of Police filed a charge
sheet against the accused.
7. In order to bring home the guilt of the accused, the prosecution
has examined 14 witnesses and marked 14 exhibits and 11 material objects. The
appellants, when questioned under S.313 of Code of Criminal Procedure, flatly
denied the versions of the prosecution witnesses, but would add that those
versions were false. No defence witness was examined. After considering the
submissions made by both sides and scrutiny of the materials available, the
learned Sessions Judge found the accused guilty under S.302 read with S.34 of
I.P.C. and awarded life imprisonment. Aggrieved appellants have brought
forth this appeal.
8. Strongly attacking the judgment of the court below, the learned
Counsel appearing for the appellants would submit that the lower court has
found them guilty in a case where there was no evidence, and the prosecution
miserably failed to prove the case or show any nexus between the appellants
and the crime in question; that the prosecution did not produce any direct
evidence, but has solely depended on the circumstantial evidence, but in the
instant case, the prosecution has not even proved one circumstance indicating
the guilt of the accused; that except two witnesses, all other witnesses have
turned hostile; that P.W.1 was neither an eyewitness nor examined to speak
about any circumstance; that except P.Ws.5 and 6, which was much relied on by
the prosecution, all witnesses have turned hostile; that even P.Ws.5 and 6
have not spoken about any circumstance connecting the accused to the crime;
that from the evidence of the witnesses, it would be clear that the deceased
was a ganja seller; that number of police cases were against him, and he had
number of names also; that a reading of the evidence of P.W.7, Village
Administrative Officer would clearly reveal that both the arrest and the
consequent recovery cannot but be false; that even the reports of the chemical
analyst and serologist did not support the prosecution case; that there is
absolutely no evidence incriminating the accused; that the only circumstance
that the deceased was seen in the company of the accused the previous night
has not been proved by the prosecution; that it is pertinent to note that the
alleged recovery of the bloodstained shirt is only 10 days after the alleged
incident; that there is no evidence as to whom the bloodstained shirt belongs
to; that in the instant case, there is no motive for the accused to kill the
deceased; that in view of the above reasons, the judgment of the lower court
cannot be sustained, and hence, the same is liable to be set aside, and the
accused be acquitted of the charge.
9. The learned Additional Public Prosecutor in his attempt to sustain
the judgment of the court below would submit that it is true that number of
witnesses examined by the prosecution have turned hostile, but P.Ws.5 and 6
would clearly speak about the motive for the accused to commit the crime, and
the words uttered by the first accused before the occurrence were spoken to by
them; that from the evidence of P.W.5, it would be clear that a few hours
prior to the occurrence, he has last seen the deceased in the company of both
the accused; that this evidence would indicate that it was those accused, who
have committed the murder of the deceased; that apart from that, the
prosecution has also proved through the clinching evidence that A-1 has given
confessional statement and pursuant to the same, he has produced the material
objects including the knife used by the accused at the time of occurrence;
that this confessional statement leading to the recovery of the weapon used by
them at the time of occurrence would clearly point to the guilt of the
accused; that the reports of the chemical analyst and serologist have also
supported the prosecution case; that it is true that the prosecution case
rested exclusively on the circumstantial evidence; that by adducing sufficient
and acceptable evidence, the prosecution has proved the case beyond reasonable
doubt; that the lower court only after careful scrutiny and analysis of the
entire evidence has come to the correct conclusion that the accused have
committed the heinous crime of murder of Periasamy, and hence, the judgment of
the lower Court has got to be sustained, and the appeal be dismissed.
10. As seen above, the appellants herein, ranked as A-1 and A-2
before the court below stood charged for murder alleging that they, in
pursuance of the common object, caused the death of one Periasamy @ Ayyarettu,
the son of P.W.1 on the night of 4th May, 1992 near Girls High School,
Kamarajar Nagar, Rajapalayam. In view of the medical evidence adduced by the
prosecution through P.W.2 Postmortem Doctor, his certificate under Ex.P3 and
his opinion, it cannot be disputed that the deceased Periasamy died out of
homicidal violence, and this fact is also not disputed by the appellants.
11. Entirely resting its case on circumstantial evidence, the
prosecution, in order to prove the circumstances relied on by it, marched ten
witnesses, apart from adducing medical and scientific evidence. Out of those
witnesses, P.Ws.3, 4, 7, 8, 9 and 10 have turned hostile. Their evidence was
of no use to the prosecution to prove all or any of the facts sought to be
proved through them. P.W.6 Sonaimuthu has been examined to prove the motive
for the appellants/accused to commit the crime. According to P.W.6, on a day
at about 9.30 P.M. 2 ½ years prior to his evidence, A-1 demanded the
deceased, the money due to him, and the deceased informed the witness that he
was liable to pay Rs.200/- to A-1, and at the time of the said incident, A-1
directed the deceased that he should make the payment within a week, and
otherwise, he should face dire consequences. It is pertinent to note that
nowhere P.W.6 has stated when that incident took place. If A-1 told the
deceased that he should make the payment within a week, and if not, to face
dire consequences, the incident in question could not have taken place on the
date of occurrence. In his evidence, P.W.6 has not made any mention about
A-2. According to the said witness, A-1 was not known to him previously. He
has not identified the accused at the time of the identification parade. All
the above would cast a doubt whether any incident as narrated by P.W.6 would
have taken place either before or on the date of occurrence.
12. P.W.5 Kamaraj was examined by the prosecution to prove that the
deceased was last seen in the company of both the accused at about 8.30 P.M.
on 4.5.1992 in front of Meenakshi Theatre. According to P.W.5, on the date of
occurrence, about ten per including the deceased proceeded for hunting, and
near Meenakshi Theatre, both the appellants intercepted the deceased and took
him from there, and the witness and others proceeded to the forest for
hunting, and the next morning, he came to know that Periasamy was murdered.
Much reliance was placed by the prosecution on the testimony of this witness,
and apart from that, the lower court has also relied on the same. It is not
the case of the prosecution that the appellants were already known to P. W.5.
From the available records, it could be seen that an identification parade was
conducted by the concerned Judicial Magistrate on the requisition made by the
investigation agency. For the reasons best known to the prosecution, the
entire proceedings as to the identification parade was neither marked nor
relied on by the prosecution. But, the Investigation Officer in his evidence
has categorically admitted that during the identification parade, P.W.5 has
not identified the appellants. If the witness could not identify the accused
in the identification parade, which took place within a short span of time, it
would be hard and unsafe to accept his evidence stating that the deceased was
found in the company of the appellants on the date of occurrence that was
nearly 2 ½ years before his evidence.
13. One other circumstance relied on by the prosecution was the
confessional statement alleged to have been given by A-1 and the recovery of
M.O.6 bloodstained shirt and M.O.7 knife. A comparison of the evidence of
P.W.11 Lingam, Village Administrative Officer, the witness examined to prove
the arrest and confessional statement of A-1 and recovery of those material
objects with that of P.W.14 Investigation Officer would make it clear that no
evidentiary value can be attached to the said piece of evidence. According to
P.W.11 Village Administrative Officer, after 10 days from the date of
occurrence, he went to Malayadipatti area where he found A-1 being
interrogated after arrest, by the police officials, and at that time, the
bloodstained knife was by his side, and the police recovered M.O.6
bloodstained shirt and M.O.7 knife under Ex.P6 mahazar. According to the
prosecution, A-1 was arrested on the North-South Road of North Malayadipatti,
where he gave the confessional statement. It was not the case of the
prosecution that A-1 produced the material objects at the place where the
confessional statement was made by him and recorded by the Investigation
Officer. From Ex.P6 mahazar it could be seen that the said material objects
were recovered near Kazhudhakadavu Odai, Sanjeevi Malayadivaram,
Malayadipatti. Nowhere P.W.11 has stated in his evidence that A-1 took the
police officials and witnesses to the aforesaid place and produced the above
material objects. All the above would go to show that the evidence of P.W.11,
recovery witness and the Investigation Officer would be inconsistent to each
other, and this piece of evidence coupled with Ex.P6 mahazar would make the
falsity of the confessional statement and recovery of the material objects
explicit.
14. According to P.W.1, it was her younger son who informed her about
the incident. But, the said younger son of P.W.1 was not examined. P.W.1 has
averred in her complaint that her deceased son was intercepted on the night of
the occurrence day by two persons who were known to P.W.3. It remains to be
stated that both P.Ws.3 and 4 have turned hostile. It is not the case of the
prosecution that P.W.1 knew anything about the occurrence. From the available
materials it could be seen that P.W.1 was only an informer to the police to
set the criminal law in motion. Law does not require the prosecution either
to allege number of circumstances or to prove them, in any given case when it
rests upon the circumstantial evidence. Even one strong circumstance
indicating that except the accused, no one could have committed the offence
and pointing to the guilt of the accused, would be sufficient. But, in the
instant case, though the prosecution in its attempt to bring home the guilt of
the accused has alleged number of circumstances, it could not prove at least
one circumstance to connect the accused to the crime in question. Thus, the
prosecution has miserably failed to prove its case. Without considering all
the above aspects of the matter, the lower court went wrong in finding the
appellants/accused guilty and awarding the punishment. Hence, without any
hesitation, the judgment of conviction and sentence passed by the court below
has got to be necessarily set aside, and the appellants/ accused be acquitted
of the charge.
15. In the result, this criminal appeal is allowed, setting aside the
judgment of the court below. The appellants/A-1 and A-2 are acquitted of the
charge forthwith. The bail bonds executed by the appellants, if any, shall
stand cancelled.
Index: Yes
Internet: Yes
To:
1. The Sessions Judge, Kamarajar District at Srivilliputhur.
2. The Judicial Magistrate No.III, Srivilliputhur.
3. The Judicial Magistrate No.III, Srivilliputhur,
Through The Chief Judicial Magistrate, Srivilliputhur.
4. The Superintendent, Central Prison, Madurai.
5. The Public Prosecutor, Madras.
6. The District Collector, Kamarajar District at
Srivilliputhur.
7. The Director General of Police, Chennai 4.
8. The Inspector of Police, Rajapalayam North Police
Station.
nsv/