BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14/10/2008
CORAM
THE HONURABLE MR.JUSTICE R.REGUPATHI
AND
THE HONURABLE MR.JUSTICE R.SUBBIAH
Criminal Appeal No.1093 of 2001
1.Vadivel Pillai
2.Laxmanan
3.Muniaswamy
4.Vadivel
5.Arumugam ... Appellants/
Accused 1 to 5
Vs.
The State rep. by the
Inspector of Police,
Thattaparai.
(Crime No.257/95) ... Respondent/
Complainant
Appeal filed under Section 374(2) of Cr.P.C., against the order of
conviction and sentence dated 28.09.2001 passed in S.C.No.250 of 1998 by the
Additional Sessions Judge cum Chief Judicial Magistrate, Tuticorin.
!For appellants ... Mr.G.R.Edmund
^For respondent ... Mr.N.Senthur Pandian,
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered by R.REGUPATHI, J.)
The appellants are A1 to A5 among six accused in S.C.No.250 of 1998 on the
file of the Additional Sessions Judge cum Chief Judicial Magistrate, Tuticorin.
On conclusion of the trial, the appellants were convicted under Sections 147,
302 read with 149, 201 read with 149 of the Indian Penal Code and sentenced to
undergo six months rigorous imprisonment under Section 147 of the Indian Penal
Code; life imprisonment and also a fine of Rs.1,000/- imposed upon each accused
with default clause, under Section 302 read with 149 of the Indian Penal Code,
five years rigorous imprisonment and also a fine of Rs.1,000/- imposed upon each
accused with default clause, under Section 201 read with 149 of the Indian Penal
Code. A6 in the case was acquitted by the trial Court. The State did not prefer
any appeal against the acquittal of A6. Aggrieved against the conviction and
sentence, the appellants/A1 to A5 in the case, preferred the present appeal
before this Honourable Court.
2. The case of the prosecution as per the first charge framed by the trial
Judge is that on 25.08.1995, at about 11.00 a.m., all the accused armed with
sticks, joined together
and formed an unlawful assembly near the Tamarind Tree at the northern side of
Uchimahakaliammal Temple in K.P.Thalavaipuram with the common intention to
murder the deceased viz., Subburaj, who is the son-in-law of the first accused
and husband of the sixth accused and indulged in rioting; thereby, all the
accused have committed an offence punishable under Section 147 of the Indian
Penal Code.
3. As per the second charge, all the accused armed with stick (Ooli
kambu), assaulted the deceased indiscriminately and caused injuries on his head,
back, chest, right cheek, right and left knee and caused his death; thereby,
committed an offence under Section 302 read with 149 of the Indian Penal Code.
4. As per the third charge, the appellants/A1 to A5 in the case, at about
12.00 noon, on the same day, with a view to screen the offence, had taken the
dead body of the deceased to the graveyard and cremated the same; thereby
committed an offence under Section 201 read with 149 of the Indian Penal Code.
5. Before the learned trial Judge, on the side of the prosecution, PWs.1
to 16 were examined, Exs.P1 to P15 were marked and MOs.1 to 6 were produced.
6.PW1 is the mother of the deceased, A6 is his wife and A1 is his father-
in-law i.e., father of A6. It is the case of the prosecution that the marriage
of the deceased with A6 was performed about one year prior to the date of
occurrence. As per the customs prudent in their community, the deceased was
living with A6 at the residence of A1. It is also the practice prudent in their
community that a house will be set up for the couple by the father of the bride.
Under such circumstances, on 23.08.1995 the deceased, along with A6, attended
the betrothal of his younger sister with the brother of PW2 at Tuticorin. On
the next day, A6 left Tuticorin and went to her father’s house at Thalavaipuram
and the deceased also returned back a little later. On 25.08.1995, at about
11.00 a.m., at Thalavaipuram there was a wordy quarrel between the first accused
and the deceased since the deceased demanded a separate house as assured by the
first accused and PWs.2, 4 and others were present at that time. In pursuance of
such wordy quarrel, all the accused took sticks (Ooli kambu) from the nearby
cart and assaulted the deceased indiscriminately and caused the injuries and the
deceased died instantaneously. Immediately thereafter the accused took the
deceased in the cart and proceeded to the graveyard for cremation. At that
time, PWs.2 & 4 were also threatened by the accused. PW1, who is the mother of
the deceased was informed about the occurrence by PW4 and on hearing the news,
she immediately rushed to the village on the same day. After knowing that the
dead body of the deceased was placed in the graveyard, she went there and found
the dead body of the deceased being cremated by the accused. Since the accused
threatened PW1 and drove her away, she returned back to Tuticorin by walk and on
reaching there, she went to the house of her brother, PW9, who was working as
Police Constable at Tuticorin South Police Station to inform him as to what had
happened and found him not there as he had gone to a relative’s house. On the
next day, viz., on 26.08.1995, PW9 after coming to know that PW1 searched for
him, met her and she told him about the occurrence and thereafter, at 9 p.m. he
accompanied PW1 to the Police Station where she gave a complaint and it was
reduced into writing under Ex.P1.
7.PW14, after receiving a copy of the First Information Report, delivered
the same to the Inspector of Police and thereafter, to the Court. The First
Information Report was received by the Magistrate concerned at 12.50 p.m. on
27.08.1995.
8.PW1, in her evidence, has spoken to about the marriage of the deceased
with A6 and also about the participation of the couple viz., the deceased and A6
in the betrothal held on 23.08.1995. On 25.08.1995, PW1 went to Thalavaipuram
and PWs.2 & 4 informed her that the deceased was murdered and the dead body of
the deceased was taken to graveyard. At the time when PW1 reached the
graveyard, arrangements were made by the accused to cremate the dead body. When
PW1 questioned about the same, the first accused pushed her away and A1 to A5
also drover her away and thereafter, the accused cremated the dead body by
pouring kerosene. PW1 returned back to Tuticorin by walk and went in search of
PW9 viz., her brother. Finding that PW9 was not available at his residence, she
returned back. On the next day, viz., on 26.08.1995, PW9 came to her residence
and accompanied by PW9, she went to the Police Station at 8.30 p.m. and lodged a
report attested by PW9. Ex.P1 is the complaint given by PW1.
9.PW2, in his evidence, stated that on 25.08.1995, at about 11.00 a.m., he
was present in the village viz., Thalavaipuram and had seen the quarrel between
the deceased and the accused. At that time, all the accused caused
indiscriminate injuries on the deceased and fourth accused has poked the
deceased by using a stick on the right eye and thereby, his eye ball got
protruded. When the deceased asked for water, A3 & A5 have poured kerosene in
his mouth and subsequently, again the deceased was assaulted by them. PW2 was
threatened by them and thereafter, the dead body of the deceased was taken in a
cart to the graveyard for cremation. PW2 further states that this fact was
informed to PW1 when she came to the village at about 12.00 noon and at that
time, PW4 was also present.
10.According to PW4, he was also present and witnessed the occurrence. He
has corroborated the evidence of PW2.
11.PW5, who is alleged to have attested the Observation Mahazar prepared
by the investigating officer, turned hostile.
12.PWs.6, 7 & 8 have been examined as motive witnesses, who spoke about
the dispute between A1 and deceased on account of refusal of A1 in arranging a
separate house for the deceased.
13.PW9 is the brother of PW1, who corroborated the evidence of PW1. PW9
accompanied PW1 to the Police Station for lodging report and he has attested
Ex.P1.
14.PWs.10, 11 & 12 also alleged to have witnessed the occurrence.
However, they did not support the case of the prosecution and therefore, they
were treated as hostile.
15.PW13 is the Village Administrative Officer and in his evidence, he has
stated that A1, A2 & A6 were arrested and their statements were recorded. The
admissible portion of the statement given by A1 is Ex.P6. In pursuance of such
statement, MO.1 was produced by the accused and the same was recovered under
cover of mahazar Ex.P7.
16.PW14, Police Constable, on 26.08.1995 received the First Information
Report and handed over the same to the investigating Officer and thereafter, at
12.50 p.m., he has delivered a copy of the same to the learned Judicial
Magistrate No.I, Tuticorin.
17.PW15, another Police Constable, who had taken the material object from
the scene of occurrence, produced the same with a requisition before the learned
Judicial Magistrate.
18.PW16 is the investigating officer, on receipt of the First information
Report on 27.08.1995 at about 9.00 a.m. through the Constable, proceeded to the
scene of occurrence and prepared Observation Mahazar, Ex.P10 and recovered
ashes, MO.4 from the cremation ground under athatchi Ex.P11, sample earth, MO.5
under Athatchi Ex.P12 and bullock cart, MO.6, and prepared Observation Mahazar
Ex.P13 and examined the witnesses, who were present while conducting inquest
over the ashes, and prepared inquest report Ex.P14. On 31.08.1995, at about
11.30 p.m., A1, A2 & A6 were arrested in the presence of the Village
Administrative Officer. In pursuance of the statement given by the first
accused, sticks and can were recovered. On 12.09.1995, A3, A4 & A5 were
arrested and sent to judicial custody. Further, he sent a requisition letter
to the learned Judicial Magistrate to forward the material objects for chemical
analysis. PW3, the Court clerk, despatched the material objects for chemical
analysis as per Exs.P2 & P3. Ex.P4 is the chemical analysis report and Ex.P5 is
the opinion of the Forensic Doctor. On conclusion of the investigation, PW16
filed the final report against the accused on 20.06.1996 for the offences under
Sections 147, 302 read with 149, 201 read with 149 of the Indian Penal Code.
19.The learned trial Judge, on conclusion of the evidence by the
prosecution, questioned the accused under Section 313 of the Code of Criminal
Procedure, regarding the incriminating materials produced, for which all the
accused claimed innocence and pleaded not guilty. Neither oral nor documentary
materials was produced on the side of the defence. After considering the
arguments advanced by the defence as well as the prosecution and the materials
placed, the learned trial Judge convicted and sentenced the appellants as stated
above. Aggrieved against the conviction and sentence, the present appeal has
been preferred before this Honourable Court.
20.The learned counsel for the appellants submitted that the occurrence
took place on 25.08.1995 at 11.00 a.m. and the complaint was given to the Police
belatedly i.e., only on 26.08.1995 at 09.00 p.m. Admittedly, the Police station
is at a distance of 8 k.ms. away from the scene of occurrence and PW1, the
mother of the deceased, could have immediately given the complaint to the police
with the assistance of PWs.2 & 4, instead, it is the case of the prosecution
that she went back to Tuticorin by walk covering thirty kilometres to meet her
brother, PW9, who is a Police Constable and finding that PW9 was not available
on that day, she returned back and on the next day only, she was met by PW9 at
her residence and only thereafter, accompanied by PW9 she is said to have gone
to the Police Station and lodged Ex.P1. Such a perusal of Ex.P1, would reveal
that it is obsessed with concoction, implicating all the accused. Though PWs.2
& 4 are said to have witnessed the occurrence, they simply stated that the
deceased was attacked indiscriminately. Thus, according to the learned counsel,
the occurrence would not have taken place in the manner put forth by the
prosecution. He further pointed out that the occurrence had taken place in broad
day light at 11.00 a.m. in the presence of several eye-witnesses and at a
vicinity where the Municipality, public school and several houses are situated.
Moreover, though PWs.9 to 13 were examined in the case as independent witnesses,
none of them supported the prosecution case. PW2 is none else than the brother-
in-law of the deceased. He would not have witnessed the occurrence at all. If
really he had witnessed the occurrence, he would have accompanied PW1 to the
Police station and lodged a complaint. The presence of PW2 in the scene of
occurrence was not mentioned in Ex.P1 and it has been mentioned only in the
evidence. PW2 resides at Tuticorin and the explanation offered by the
prosecution to the effect that he visited the scene of occurrence for the
purpose of selling lottery tickets, is on the face of it, quite wispy. It is
glaring that only because of the reason that PW2 is closely related to the
deceased, he has been planted as an eye-witness in the case. PW4 is also
closely related to the deceased. Though PW4 is also closely related to the
deceased and PW1, he too never accompanied PW1 either to the graveyard or to the
Police Station for giving complaint. Therefore, the conduct and attitude of PW4
also creates doubt and the prosecution has purposely planted him as an
eyewitness to the occurrence.
The learned counsel for the appellants further submits that though the
stick has been recovered and it has been stated that it was stained with blood,
the chemical analysis report states otherwise to the effect that no blood stains
were detected. In so far as the opinion which has been received with regard to
the ashes and bones sent for Forensic examination is concerned, it has been
stated that it is difficult to ascertain the race, age and sex of the available
specimens. Under such circumstances, it is contended that because of the enmity
between the deceased and the accused, PWs.1 & 9 with the help of PWs.2 & 4, a
false case has been foisted on the accused and that the prosecution has failed
to substantiate its case beyond reasonable doubt.
21.Per contra, the learned Additional Public Prosecutor submits that even
in the First Information Report, the occurrence put forth by the prosecution has
been fully narrated including the motive. Moreover, it has been further
narrated as to how PW1 came to know about the occurrence, reached the scene of
occurrence and lodged the First Information Report. Merely because of the
reason that PWs.2 & 4 are related, in a grave case like this, their evidence
cannot be discarded on the ground that they are interested witnesses. PWs.6 to
8 speak about the motive part of the case of the prosecution to the effect that
there used frequent quarrels between A1 and the deceased since the deceased
demanded allocation of a house by the first accused. Though there is a delay in
lodging the First Information Report, such delay has been explained by the
prosecution to the effect that in view of communal clash, PW1 could not get any
vehicle. Therefore, she returned by walk and since she happened to be a lady,
there is nothing wrong in getting assistance of her brother, PW9 and with his
assistance, without much delay, she gave the complaint Ex.P1 to the Police.
The evidence of PW1 has been corroborated by the evidence of PWs.2 & 4 and their
testimonies are cogent and convincing. There is no need for those witnesses to
falsely implicate all the accused. A6 in the case has been rightly acquitted by
the trial Judge only because of the reason that there was contradiction in the
evidence of PWs.2 & 4. However, insofar as A1 to A5 is concerned, there are
convincing oral and documentary evidence to connect them with the crime. By
submitting that the order of the trial Court is well founded, learned
Additional Public Prosecutor pleads that the appeal may be dismissed.
22.We have heard the submissions made by the learned counsel for the
appellants and the Additional Public Prosecutor.
23.The occurrence had taken place in broad day light and had been
witnessed by several persons. Though the occurrence has taken place on the
street, near Municipality, public school and houses, except PWs.2 & 4, the
persons who were examined as independent witnesses did not support the
prosecution case. PW2 is the brother-in-law and PW4 is a close relative of the
deceased. PWs.2 & 4 alone have given graphic pictures about the occurrence to
PW1 and therefore, the name of PW2 could not have been omitted in the First
Information Report. But the name of PW2 has not been mentioned in the First
Information Report. Under such circumstances, we could infer that PW2, who is
the brother-in-law of the deceased, has been purposely planted as an eyewitness
in the case. As rightly pointed out, if really PW2 is an eyewitness to the
occurrence, he would have accompanied PW1 to the Police Station from the scene
of occurrence and under such circumstances, the complaint could have been given
immediately without any loss of time. There was communal riot and PW1 alleged
to have walked all the way for 30 k.m. to Tuticorin instead she could have
reached the Police Station with the help of PWs 2 & 4 which is situated within 8
k.m.
24.Further, it appears that the occurrence would not have taken place in
the manner as put forth by the prosecution There is no reason as to why PW1
walked all the way to Tuticorin to seek the assistance of PW9, who is a Police
Constable. A graphic narration has been given in the First Information Report
and concoction is looming large on the perusal of the First Information Report.
PWs.2 & 4 are also closely related to the deceased. They would have accompanied
PW1, but they did not do so. It is the case of the prosecution that PW1, after
receiving information from PWs.2 & 4, went alone to the graveyard and
subsequently returned back by walk to Tuticorin which is situated thirty
kilometres away. Though she has stated that she reached the scene of occurrence
through bus, she has stated that such bus facility was not available for
returning back to Tuticorin. The reason
assigned is that there was some communal riots. At any rate, PW1 walking back
thirty kilometres in an agonizing moment is unbelievable. The First Information
Report also had reached the learned Judicial Magistrate much belatedly. The
explanation offered by the Constable that he first went to the Inspector of
Police and subsequently, to the Judicial Magistrate to deliver copy of the First
Information Report, is also unbelievable. Under such circumstances, it is very
much apparent that the prosecution case has been foisted with deliberation and
consultation and all the accused were purposely implicated in the case. Though
ashes have been recovered from the graveyard, the prosecution has not
established that they are the burnt ashes of the deceased. Though it has been
stated that the weapons of offence were stained with blood, such aspect has not
been substantiated through chemical analysis/Forensic report.
25.In the light of the above discussion, We hold that the evidence of
PWs.2 & 4 are unreliable and the result would be that we have to necessarily
hold that the case of the prosecution has not been proved beyond reasonable
doubt. The reasons assigned by the trial Judge for convicting the accused are
unacceptable. The evidence of PWs.2 & 4 and that of PW1 is highly artificial.
Under such circumstances, we are left with no other option except to acquit the
accused.
26.In the result, the order of conviction and sentence passed by the trial
Court is set aside. Fine amount, if paid, is ordered to be repaid. Bail bonds
executed stands cancelled.
27.With the above observations, the appeal is allowed.
gcg
To
1.The Additional Sessions cum Chief
Judicial Magistrate, Tuticorin.
2.The Inspector of Police,
Thattaparai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.