JUDGMENT
A. Kulasekaran, J.
1. C.A. No. 1029/01 is by A-2; C.A. No. 1052/01 is by A-5 and C.A. No. 1186/01 is by A-1, A-3 and A-4 in S.C. No. 115/01. In this judgment, for the sake of convenience, the appellants in the above appeals will be referred to as A-1 to A-5 in the same order as they were arrayed before the learned Sessions Judge.
2. The first charge was framed against A-1 to A-5 under Section 120-B IPC on the allegation that five days prior to 16.12.00, they, at P.K. Veerattikuppam village conspired to murder the deceased and in pursuance of the said conspiracy, committed the murder of the deceased Balakrishnan at 9.30 p.m. on 16.12.2000. The learned Sessions Judge, finding all the appellants guilty, sentenced them to imprisonment for life.
3. The second charge was framed against A-1, A-2 and A-4 under Section 147 IPC and the learned Sessions Judge on finding them guilty under the said charge, sentenced them to six months rigourous imprisonment.
4. The third charge was framed against A-3 and A-5 under Section 148 IPC and the learned Sessions Judge on finding them guilty under the said charge, sentenced them to one year rigourous imprisonment.
5. The fourth charge was framed against A-1 to A-5 under Section 341 IPC on the allegation that they wrongfully restrained the deceased and P.W.1 from proceeding. The learned Sessions Judge acquitted all the appellants under the above charge.
6. The fifth charge was framed against A-3 and A-5 under Section 302 IPC on the allegation that they caused the death of the deceased Balakrishnan intentionally and knowingly by beating him indiscriminately with an iron rod at the instigation of A-1, A-2 and A-4. The learned Sessions Judge, finding A-3 and A-5 guilty under the above said charge, sentenced them to imprisonment for life and also directed each one of them to pay a fine of R3.1,000/- with a default sentence of six months rigourous imprisonment.
7. The sixth charge was framed against A-1 and A-4 under Section 302 read with 109 IPC on the allegation that they instigated A-3 and A-5 to murder the deceased. The learned Sessions Judge, though found A-1 guilty under the above charge, did not award any separate sentence, while A-4 was found not guilty and he was acquitted.
8. The seventh charge was framed against A-1, A-2 and A-4 under Section 302 read with 149 IPC on the allegation that they were members of an unlawful assembly along with A-3 and A-5 and in pursuance of the common object of the unlawful assembly, A-3 and A-S committed the murder of the deceased Balakrrishnan. The learned Sessions Judge, finding A-1, A-2 and A-4 guilty under the said charge, sentenced them to imprisonment for life and also directed each one of them to pay a fine of Rs. 1,000/= with a default sentence of six months.
9. Aggrieved over the conviction and sentence awarded by the learned Sessions Judge, the appellants have preferred the above appeals’.
10. The brief facts necessary for the disposal of these appeals could be stated thus :
The deceased, P.W. s 1 and 3 are the sons of P.W.4. A-1 and P.W.4 are step-brothers. A-3 and A-4 are the sons of A-1. A-2 is the son-in-law of A-1. A-5 is the brother-in-law of A-1. The prosecution witnesses, the deceased and the accused are residents of P.K. Veerattikuppam village. They are all agriculturists by profession. A-1 sold 75 cents of land, which was allotted by way of a partition to him to P.W.4. Even prior to the execution of the sale deed by A-1 to P.W.4, A-1 clandestinely bequeathed the same property in favour of his wife and son, which resulted in filing a civil suit as the panchayat convened to settle the dispute could not arrive at any amicable solution. A-1 attempted to obtain an injunction order against the prosecution witnesses, but he failed. Due to the said incident the relationship between the parties were strained. This is said to be the motive for the occurrence that took place on 16.12.2000.
11. While the matter stood thus, on 16.12.2000 at about 1.00 p.m., P.W.1 and the deceased proceeded to Managathi village in a bullock cart to buy hay. On their return after buying hay, at about 6.00 p.m. at Mandarakuppam first thermal, P.W.3 the elder brother of P.W.1 and the deceased saw them on the way and asked them to go home safely. When they reached Periyakappankulam, they found a big stone on the way in the running stream. The deceased asked P.W.1 to get down and remove the stone. At that time A-1 and A-2 shouted at the deceased and P.W.1 by saying “yes come”. P.W.1 saw them in the light emanating from the lanther that was hanging in the bullock cart. A-1 and A-2 instigated the other accused to kill P.W.1 and the deceased. Immediately A-1 and A-4 pushed the deceased down from the bullock cart. A-3 and A-5 attacked the deceased on his head with an iron rod. On seeing the said incident, P.W.1, out of fear for his life, ran away from the scene of occurrence and hid himself in the cashew groove.
12. P.W.1 reached home the next morning at 5.00 a.m. On reaching home, he enquired his father, P.W.4, as to whether the deceased has returned home. P.W.4 enquired P.W.1 as to why he alone had come back when he had gone along with the deceased the previous day. Thereafter, P.W.s 1 and 4 accompanied by the other family members reached the scene of occurrence. After reaching the scene of occurrence and on seeing the dead body of the deceased, they went to Mandarakuppam and informed the Village Administrative Officer, P.W.5 about the occurrence. P.W.5 accompanied P.W.1 in his bicycle and reached the scene of occurrence. After inspecting the scene of occurrence, P.W.5 took P.W.1 to Oomangalam police station, where a complaint, Ex.P-1 was given to P.W. 12, the Inspector of Police, wherein P.W.s 1 and 5 have signed.
13. P.W. 12, on receiving the complaint, Ex.P-1 at 12.00 noon on 17.12.2000, registered a case in crime No. 305/00 under Section 302 IPC. Ex.P-15 is a copy of the printed first information report. The express reports were forwarded to the court as well as the higher officials.
14. P.W.12, an reaching the scene of occurrence at 12.30 p.m. on 17.12.00, made arrangements to take photographs of the scene of occurrence as well as the dead body of the deceased. He prepared an observation mahazar, Ex.P-2 attested by P.W.S. He drew a rough sketch, Ex.P-16. He conducted inquest over the dead body of Balakrishnan between 1.30 p.m. and 3.00 p.m. in the presence of P.W.s 1 to 5 and other witnesses and prepared inquest report, Ex.P-17. He handed over the dead body to a police constable with a requisition, Ex.P-8 to the doctor to conduct autopsy.
15. On receipt of the requisition, Ex.P-8, P.W.9, the Assistant Surgeon, Government Hospital, Vridhachalam, conducted autopsy on the dead body of the deceased and found the following injuries :
“1) A lacerated wound on the right side of the forehead size 1-1/2 cm x 1 cm x H cm.
2) An abrasion on the back of left elbow size 1/2 cm x H cm.
3) Small abrasion on the dorsum and lateral aspect of left leg.
4) An abrasion on the back of left forearm size 10 cm x H cm.
5) An abrasion on the left knee size 2 cm x 1 cm.
6) An abrasion on the left side of the left knee size 1 cm x 1 cm.
7) An abrasion on the left buttock size 1-1/2 cm x 1-1/2 cm.
8) A lacerated wound on the left parietal region of the scalp size 4 cm x 2 cm x bone depth through which the membrane and brain matter are exposed. Blood clots present over the wound.”
The doctor issued Ex.P-9, the post-mortem certificate with his opinion that the deceased would appear to have died of shock and haemorrhage as a result of injuries sustained to the brain.
16. P.W.12, in the meantime, continuing with his investigation, examined P.W.5 at 3.15 p.m. He recovered sample earth, M.0.3, bloodstained earth, M.0.4, gunny bag, M.0.2, green colour shawl, M.0.9 and a lanther/ M.O.1 under a mahazar, Ex.P-3 attested by witnesses. On the same night at 8.00 p.m. the investigating officer seized M.0.12, bloodstained underwear, M.0.11, lunghi and M.0.10, banian under Form-95, on the same being produced by the police constable, who was present during the postmortem. On 18.12.00 at about 11.00 a.m., A-2 and A-4 were arrested near Sembaran temple and they were sent to court for remand. On 19.12.00 at about 4.00 p.m., A-5 was arrested at Vridhachalam main road near Therkuvallur bus stop. He gave a statement, which was recorded by the investigating officer attested by P.W. 6. The admissible portion of the said statement is Ex.P-4. Pursuant to the statement given by A-5, he took- the police party and produced M.0.5, the iron rod, which was hidden by him. The same was recovered under a mahazar, Ex.P-5. On 21.12.00 at about 7.15 a.m., A-3 was arrested near Arasukuzhi bus stop. He also gave a voluntary confessional statement, the admissible portion of which is marked as Ex.P-6. Pursuant to the said statement, he took the police party to Karuppasamy temple and produced M.0.6, iron rod, and the same was seized under a mahazar, Ex.P-7 attested by P.W.7. A-1 surrendered before the Judicial Magistrate, Thittagudi on 22.12.00. The material objects were forwarded to the court with a requisition to send them for chemical analysis. On 6.1.01 P.W.9 was examined and his statement was recorded. On 9.1.01 the investigating officer questioned P.W.s 3 and 4 and recorded their statements. On 23.1.01 he recorded the statement of P.W.8 and other witnesses. On completion of the investigation, the final report was filed against all the accused on 15.2.01.
17. The accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against them. They denied all the incriminating circumstances. All the accused have categorically stated that they dispute the arrest as alleged by P.W. 12. They did not examine any witness on their aide nor did they mark any documents.
18. The learned senior counsel appearing for the appellants submits that the prosecution has not let in any evidence to prove the alleged offence of conspiracy. Though it is the evidence of the sole eye witness, P.W.1, that after seeing the attack on the deceased, he ran away and hid himself in a cashew groove and stayed there overnight, yet on reaching home the next morning he enquired his father, P.W.4 as to whether the deceased returned home, which casts a doubt on the evidence of P.W.1 as to whether he could have been at the place of occurrence as alleged. It is the further contention Of the learned senior counsel that though the distance between the police station and the scene of occurrence is only six kilometres, without going to the police station, the prosecution witnesses have chosen to go to the office of the Village Administrative Officer, P.W.5, at Mandarakuppam, which is at a distance of seven kilometres from the scene of occurrence. The learned senior counsel also further contends that there is a discrepancy with respect to the scene of occurrence itself, as could be seen from Exs.P-2 and P-3 and also the evidence of P.W.1. The learned senior counsel further contends that the case as projected by the prosecution through Exs.P-2, is also not in tune with the rough sketch, Ex.P-16, prepared by the investigation officer and, hence, the appellants are entitled for an acquittal.
19. We have heard the learned Government Advocate (Crl. Side) on the above contentions and also perused the recorded evidence, both oral and documentary.
20. The cause of death of the deceased, Balakrishnan, stands established through the evidence of the doctor, P.W.9, who conducted autopsy and issued Ex.P-9, the post-mortem certificate. The doctor has categorically stated that the deceased had died of shock and haemorrhage due to the injuries to the brain. The appellants have also not disputed the cause of death of the deceased either before the trial court or before this Court. On the medical evidence we hold that the deceased died on account of homicidal violence.
21. The prosecution, before the trial court, examined P.W.1 as the sole eye witness to prove the occurrence. P.W.1 is none other than the brother of the deceased. It is trite law that when the eye witness to the occurrence happens to be related to the deceased, the court should exercise more caution while examining his evidence.
22. Even at the outset we may say that so far as the charge under Section 120-B IPC is concerned, the witnesses relied on by the prosecution has not whispered anything about the criminal conspiracy hatched. Hence, prima facie, we are of the view that the offence under Section 120-B against the appellants were not at all established.
23. It is the case of the prosecution through the evidence of P.W. 1, that the relationship was not cordial between the family of the deceased and the family of the accused. There was a civil suit pending between the parties, since A-1, though had sold 75 cents of land, which he got by way of partition, to P.W.4, he did execute the sale deed, but also clandestinely bequeathed the property to his wife and son, due to which there were ill-feelings between the two families and a civil suit was also pending. It is the further evidence of P.W.1 that on the date of occurrence, he and the deceased went to Managathy village in a bullock: cart to buy hay. On their way back they met P.W.3, their elder brother, who asked them to go home safely. It is his further evidence of P.W.1 that around 9.00 p.m., on reaching Periakappankulaw, they saw a stone was lying in the stream and that the deceased asked P.W.1 to get down and remove the stone. At that time the accused came there and on instigation by A-1 and A-2, they pushed the deceased down from the bullock cart and attacked him. P.W.1 has further stated in his evidence that due to fear for his life, he went and hid himself in a cashew groove and that he went home the next day morning at 5.00 a.m. and enquired his father as to whether the deceased has returned back and, thereafter, coming to know that the deceased has not returned and P.W.s 1 and 4 along with the other family members went to the place and on seeing the deceased lying dead, went to the office of the Village Administrative Officer, P.W.5 and informed him.
24. P.W.5, the Village Administrative Officer, Has stated in his evidence that on getting information from P.W.1, he vent along with him to the scene of occurrence and finding the body at the scene of occurrence, he left his assistant to guard the place and he ,along with P.W. 1, went to the police station at Oomangalam and gave a complaint to P.W. 12 and on the basis of the complaint a case was registered.
25. On going through the evidence of P.W.1, we could, even at the outset, without any hesitation, say that his evidence does not inspire the confidence of this Court. Though P.W.1 in his evidence has stated that on seeing the deceased being attacked, he ran away and hid himself in a cashew groove and only on the next day morning he went home, yet on reaching home, he did not inform P.W.4, his father about the incident, but instead he enquired his father as to whether the deceased has returned. The normal tendency of any person on seeing his brother being attacked would be to go and inform his family as soon as possible, but the action of P.W.1 is not what one would expect of any normal person. Neither did he go over to the place where the deceased was attacked nor on reaching home informed his family members about the incident. Instead of going and informing his family, he enquired his father, P.W.4 as to whether the deceased has returned home or not. In cross-examination P.W.1 has stated that his house is one kilometre away from the scene of occurrence, but he reached his house only at 5.00 a.m. on the next day morning. This very action of P.W.1 casts a doubt as to whether he could really have witnessed the occurrence. Hence, we reject the evidence of P.W.1.
26. The other important documents to be dealt with for deciding this case are Exs.P-2, P-3 and P-16. Ex.P-2 is the observation mahazar prepared by P.W. 12. In Ex.P-2 it is found mentioned that the occurrence took place on the northern side of the tar road in the cashew groove of Arumugam. It could be further observed from Ex.P-2 that bloodstains were also found in some of the cashew leaves as well in the cashew groove of Arumugam. In Ex.P-3, the seizure mahasar, it is found mentioned that the investigating officer seized M.O.s 1 to 4 and 9 in the cashew groove of one Govindasamy. As rightly pointed out by the learned senior counsel, if really the occurrence took place as alleged by P.W.1 in the tar road, it is highly unbelievable as to how in the observation mahazar, Ex.P-2, it is found mentioned that the occurrence took place in the cashew groove of Arumugam. Assuming for a moment the occurrence took: place in the cashew groove of Arumugam, then it is not known as to how in the seizure mahazar, Ex.P-3, the officer has mentioned that M.O.s 1 to 4 and 9 were recovered from the cashew groove of Govindasamy. It is also pertinent to point out that in the rough sketch, Ex. P-16, it is found mentioned that the bullock cart and the body of the deceased were found only in the cashew groove of Govindasamy, which is on the southern side of the tar road. Admittedly, P.W. 12 has not seized any bloodstains from the cashew groove of Arumugam. The prosecution has also not explained as to how the bullock cart, which was left on the tar road came to the cashew groove of Govindasamy. It is also to be noted that in Ex.P-2 it is stated that the bullock cart was found in the place of occurrence, but no details have been mentioned as to whether it is in the cashew groove of Arumugam or Govindasamy. The above said discussion of ours makes it clear that the evidence of P.W.1 that the occurrence took place on the tar road and the observation mahazar, Ex.P-2, wherein it is found mentioned that the occurrence took: place in the cashew groove of Arumugam cannot be true since the bullock-cart and the body were found only in the cashew groove of Govindasamy, which is on the southern side of the tar road.
27. Even assuming for a moment that the occurrence took: place as alleged by the prosecution, in that the deceased was done to death in the cashew groove of Arumugam as alleged in Ex.P-2, the prosecution has not explained the reason as to why the dead body and the bullock cart were moved from the cashew groove of Arumugam to the cashew groove of Govindasamy, since the same were found in the cashew groove of Govindasamy, which could be seen from Exs.P-3 and P-16. The prosecution had no explanation to offer. The above discussion of ours clearly shows that the prosecution has miserably failed to establish the scene of occurrence as well and has also not explained as to how the body and the bullock: cart were found in the cashew groove of Govindasamy. The above discrepancy in the exhibits creates a doubt as to whether the occurrence could have taken place as alleged by the prosecution.
25. In view of the above discussion of ours, we are of the considered view that it is unsafe to act on the evidence of P.W.1, who is the sole eye witness and whose testimony is an interested testimony, and as the prosecution has also miserably failed to prove the case against the appellants beyond all reasonable doubt. The variance of the prosecution story and the suspicion in the mind of the Court is not dissolved by the prosecution and, hence, the benefit of doubt has to be credited to the appellants. Accordingly, we give the benefit of doubt to the appellants.
29. In result, the conviction and sentence imposed on the appellants by the trial court are set aside and they are acquitted of all the charges framed against them. The criminal appeals are allowed. It is reported that the appellants are on bail. Fine .amounts, if any, paid by the appellants shall be refunded to them. Bail bonds executed by them shall stand cancelled.