JUDGMENT
Janarthanam, J.
1. The appellant was the accused in S.C. No. 14 of 1987 on the file of the IV Additional Sessions Judge, Madras. He was found guilty of an offence under Section 302 of the Indian Penal Code, convicted thereunder and sentenced to imprisonment for life. Aggrieved by the said conviction and sentence, the present action had been resorted to.
2. Brief facts are :-
(a) There is a housing complex at door No. 39, Srinivasa Achari Street, Perambur, Madras. In the said complex, there are about twenty houses. The accused, along with his brother Samraj (since deceased) and his parents was residing at door No. 6. At Door No. 4, one Savithiri had been residing, along with her husband, by name Devaraj and her children. At Door No. 5, her sister by name Muniammal (P.W. 4) had been residing. P.W. 1 is the brother of the said Devaraj and he had also been residing, alongwith the family members of P.W. 4, P.W. 1 and the deceased, it is said, were employed as tinkers in a steel company.
(b) The accused used to frequent to the house of Savithiri and had a friendly talk with her, during the absence of her husband. Somehow or other, the accused was said to have developed clandestine relationship with the said Savithiri. This abeminable conduct of the accused had been reprimanded by his brother, Samraj (the deceased) and his other family members. The accused was said to have severely warned him a week prior to the occurrence, which event happened on 30-8-1986 to sever such clandestine relationship with the said Savithiri. Thereafter, the accused ceased to visit the house of the said Savithiri and instead, he had been meeting her outside the house.
(c) A day previous to the occurrence, the accused was found in the company of the said Savithiri. The deceased Samraj was said to have seen the accused in the company of the said Savithiri at the bus stand. This irritated the deceased. He appeared to have complained to his mother P.W. 3 of such clandestine meeting and the relationship between the accused and the said Savithiri as continuing outside the house.
(d) On the day of the occurrence, at about 7 p.m., the deceased came to the house and requested his mother to somehow or other see that this brother, the accused, ceased his illicit connection with the said Savithiri. The accused at that time came to the house and heard the conversation of the deceased with his mother. The accused, enraged at such a conduct of the deceased, picked up a casuarina stick (M.O. 1) lying in front of his house, rushed into the house and beat the deceased Samraj with the same on his head, back and other parts of his body indiscriminately. After inflicting such indiscriminate beatings he ran out of the house, with M.O. 1. As a consequence of such beatings, the deceased Samraj fell down on the ground with profuse bleeding. P.W. 1 to 3 is said, had the fortuitious opportunity of witnessing the entirety of the occurrence, while P.W. 4 was able to see the incriminating circumstance of the accused picking up the casuarina stick (M.O. 1) lying in front of his house, going inside his house and coming out of the house in hurly burly fashion with M.O. 1. P.W. 3, mother of the accused procured an auto and took the victim, the deceased to the Government Stanley Hospital, Madras, in a bid to save his life.
(e) P.W. 9 was the then Medicial Officer attached to Government Stanley Medical College Hospital, Madras. At 8.15 p.m., while he has on duty, the victim. The deceased had been examined by him. On such examination, he found him to be dead. He noted down the injuries found on the person of the deceased in the Accident Register. P.W. 3, it is said, had told him that the younger brother of the victim the deceased was responsible for the causation of the injuries on the person of the deceased, by means of a stick. Exhibit P. 6 is the copy of the accident register. He then sent the body of the deceased to the mortuary.
(f) P.W. 12 was the then Inspector of Police, Sembium Police Station. At 9.45 p.m., while he was in the police station, P.W. 3 appeared before him and gave Exhibit P. 14 report, as respects the occurrence. He registered the same, as a case in Crime No. 4428/86, for an alleged offence under Section 302 I.P.C. He prepared express reports and sent the same to the concerned officials. Exhibit P. 1 to 5 is the copy of the printed FIR. He took up further investigation in this case.
(g) He rushed and reached the place of occurrence at 10.30 p.m. He examined P.W. 3 and others. On 31-8-1986, at about 5.50 a.m., he drew rough sketches of the scene of occurrence, Exhibits P. 16 to P. 18. At 6.45 a.m., he inspected the scene of occurrence and prepared Exhibit P. 1 observation mahazar. At 7.15 a.m., he seized bloodstained earth (M.O. 2) and sample earth (M.O. 3) under Exhibit P. 2, mahazar. Exhibits P. 1 and P. 2 had been attested by P.W. 5.
(h) He then went to Government Stanley Medical College Hospital. Between 8 and 10.30 a.m., he had inquest over the body of the deceased. During inquest, he examined P.Ws. 1 to 3, and others. Exhibit P. 19 is the inquest report. He seized from the body of the deceased, shirt (M.O. 4), banian (M.O. 5), pant (M.O. 6) and towel (M.O. 7) under Exhibit P.3, mahazar, attested by P.W. 6 and another. After the inquest was over he handed over the body of the deceased to P.W. 8 constable, along with Exhibit P. 11 requisition for the purpose of autopsy.
(i) P.W. 11 was the then Assistant Professor of Forensic Medicine, Government Stanley Medical College Hospital, Madras. On receipt of Exhibit P. 11 requisition at 11.15 a.m., he commenced autopsy over the body of the deceased at 11.25 a.m. on the same day. Exhibit P.12 is the postmortem certificate he issued. Viscera were preserved for chemical analysis in supersaturated saline. Viscera were sent for chemical analysis. Exhibit P. 13 is the Chemical Examiner’s report, relatable to viscera. He would opine that external injuries 4/1 to 6 found on the body of the deceased could have been caused by beating with a stick, like M.O. 1 and external injuries 7 to 9 could have been caused by falling and coming into contact with rough surface. He would further opine the external injuries 1 to 5, corresponding to internal injuries 1 to 5 were necessarily fatal and death could have occurred 16 to 20 hours, prior to autopsy.
(i) P.W. 12 went to the scene of occurrence in the evening and examined P.Ws. 4 and 5. He also examined the doctor P.W. 9. He searched for the accused and he was not available.
(k) On 1-9-1986, at 2.10 p.m., P.W. 12 arrested the accused in front of Selvapathy Chettiar part at Pulivantope and he appeared to have given voluntary confession statement, the admissible portion of which is Exhibit P. 4. Pursuant to such a confession, the accused appeared to have taken P.Ws. 7 and 12 to Otteri Carnatic Mill Colony and took out and produced, M.O. 1 cansuarina stick kept concealed in a bush situate near the north eastern corner of the compound of the Carnatic Mill Colony. M.O. 1 had been seized by P.W. 12 under Exhibit P.5 mahazar. Exhibits P.4 and P.5 had been attested by P.W. 7 and another.
(l) P.W. 12 then returned to the police station along with the accused and the seized M.O. 1. On the next day, he sent the accused to Court for remand besides forwarding the seized material objects to Court. He also sent Exhibit P.7 requisition to Court for sending the material objects to the Chemical Examiner for the purpose of examination.
(m) P.W. 10 was the then Assistant Cashier attached to the Court of the Chief Metropolitan Magistrate, Egmore Madras. On receipt of Exhibit P.7 requisition, he despatched the material objects to the Chemical Examiner for the purpose of examination, under the original of Exhibit P. 8, Office copy of the letter. Exhibits P. 9 and P. 10 are the reports of the Chemical Examiner and the Serologist respectively.
(n) P.W. 12, after completing the investigation, laid the final report under Section 173(2) of the Code of Criminal Procedure, on 27-10-1986 before the X Metropolitan Magistrate, Egmore, Madras, for an offence under Section 302 of the Indian Penal Code.
3. On committal, a charge under Section 302 of the Indian Penal Code had been framed against the accused by the Court of Session, Madras Division. When questioned as respects the charge so framed, he deined the same and claimed to be tried.
4. The prosecution, in proof of the charge so framed, examined P.Ws. 1 to 12, filed Exhibits P. 1 to P. 19 and marked M. Os. 1 to 7.
5. The accused, when questioned under Section 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against him, denied his complicity in the crime. He did not choose to examine any witness on his behalf.
6. Learned Sessions Judge, on consideration of the materials placed and after hearing the arguments of learned counsel for the accused and learned Public Prosecutor, found the accused guilty, convicted and sentenced him, as stated above.
7. Mr. P. Ezhil Nilavan, learned counsel representing Mr. A. Natarajan, learned counsel appearing for the appellant accused, would, with all vehemence, submit that the conviction and sentence, as had been imposed on the appellant-accused by the Court below, are not at all sustainable, inasmuch as there is no satisfactory evidence available on record and in such circumstances, it goes without saying, he would say, that the accused appellant is liable to be acquitted, by giving him the benefit of reasonable doubt, to which Mr. B. Sriramulu, learned Public Prosecutor would strike a discordant note.
8. We may now proceed to find out the tenability or otherwise of the rival submissions of either learned counsel on record.
9. There is no pale of controversy that the occurrence took place at about 7 p.m. on 30-8-1986 in the house of the deceased. The prosecution put up P.Ws. 1 to 4 as the eye-witnesses to the entirety of the occurrence P.W. 4 had been cited to depose to the fact of proving the incriminating circumstance of the accused picking up M.O.1 casuarina stick stated to be lying in front of his house near a tree, rushing inside the house and then coming out of the house, along with the said casuarina stick (M.O.1). Excepting P.W. 2, the most of them, namely, P.Ws. 1, 3 and 4 are neighbours. That apart, P.W. 3 is the mother of the deceased, as well as that of the accused. P.Ws. 1, 3 and 4 turned hostile, wholesale. No doubt true it is that the statements made by them earlier during the course of investigation had been placed on record in the manner allowed by law, by the prosecution. Though technically their earlier statement had been proved by the prosecution, yet the probative value that could be attached to such testimony is practically ‘nil’ and no safe reliance could be placed upon such testimony for any purpose whatever. The Court below, in fact, did not place any reliance on their testimony. In such a situation, it goes without saying that the testimony of P. Ws. 1, 3 and 4 has to be echewed out of consideration for any purpose whatever.
10. What remains thereafter is the direct testimony of P.W. 2 and the evidence of the doctor, P.W. 9, to whom P.W. 3, the mother of the deceased, as well as of the accused, had stated that the deceased had been beaten by his younger brother with a stick and as a consequence, thereof, the deceased had sustained injuries on his person, besides the recovery of the casuarina stick (M.O.1), pursuant to the confession statement given by the accused, Exhibit P.4, as testified by P.Ws. 7 and 12 and the serologist’s report Exhibit P. 10 mentioning that M.O.1 stick had been stained with human blood and the medical testimony, in the shape of the evidence of the doctor, P.W. 11, who issued Exhibit P. 12 postmortem Certificate. These things apart, there is also the first information report, Exhibit P. 14 on which implicit reliance had been placed by the Court below for fastening or mulcting criminal liability upon the accused appellant.
11. P.W. 2, though emerging from independent quarters, is after all a rickshaw puller a chance witness. He happened to be exactly at the time of the occurrence in front of the house of the deceased, so as to witness the entirety of the occurrence from A to Z. His presence in the scene was neither noticed by P.W. 3; nor having been stated in the earliest information, Exhibit P. 14. Above all, nothing had been mentioned by P.W. 12 as to when P.W. 2 had been contacted and his statement had been recorded. What is further intriguing is that his name did not at all find a place in the inquest report, Exhibit P.19. Such being the case, we are rather puzzled to note as to how it could have been possible for the investigating officer to contact P.W. 2 as a person having had the fortuitous opportunity of witnessing the entirety of the occurrence.
12. Apart from these puzzling factors and suspicious circumstances as to his having been present in the scene and had the fortuitous opportunity of witnessing the occurrence, there are also vital contradictions in the testimony relatable to the occurrence. P.W. 2 would say, during the course of investigation, that he had witnessed the entirety of, the occurrence, by standing in front of the house of the deceased. But during the course of trial, he had the audacity and temerity to depose to the effect that he was bodily present inside the house at the time when the occurrence took place. This sort of a contradiction had been duly elicited and proved by the defence in the manner allowed by law. However, the same had been pooh-poohed by the Court below as of no consequence, to which, we are unable to affix our seal of approval. Further, no light has been thrown by the investigating officer as to the visible factor, which was available at or about the time of the occurrence for the ocular witnesses, including P.W. 2 to have a glimpse of the occurrence.
13. There is a dismal feature, in the evidence of P.W. 2, which revolves on his conduct. If he had been really present there with a rickshaw, there could have been no need at all for P.W. 3, the mother of the deceased as well as the accused, to go in search of an auto for transporting the victim deceased in a bid to save his life, for taking him to the hospital. P.W. 2 would coolly say that he was bodily present with rickshaw and witnessed the entirety of the occurrence by waiting 20 or 25 feet away in the rickshaw, without rendering any sort of an assistance in the transport of the victim deceased to the hospital. Taking all these aspects into consideration, we are of the view that the testimony of P.W. 2 is not above reproach and beyond suspicion so that we can place any reliance on his testimony for any purpose whatever.
14. So much of reliance is sought to be placed on the testimony of the doctor P.W. 9, to whom P.W. 3 had stated that the victim deceased had been beaten by his younger brother. Even assuming that the younger brother, referred to therein, is the accused appellant, even then, we are at a loss to understand as to how such a testimony can be acted upon by this Court, when especially the maker of the statement, namely, P.W. 3 had given a go by to the earliest version and turned hostile wholesale, as referred to earlier. The Statement stated to have been given by P.W. 3 to the doctor P.W. 9 must have to be construed, in the eye of law, as the introduction of a relevant fact, for the purpose of proving a fact in issue. As stated earlier, the fact in issue must have to be proved by the examination of P.W. 3, the maker of the Statement and in view of the fact that she had turned hostile wholesale, the testimony of the doctor, P.W. 9, as respects the statement alleged to have been made by P.W. 3 to him is of no consequence and consequently, no reliance can be placed upon such a testimony too.
15. The recovery of M.O.1 casuarina stick at the instance of the accused, pursuant to the so called confession he made under Exhibit P.4, as testified by P.Ws. 7 and 12 cannot be expected to improve or advance the case of the prosecution, to any extent whatever, on the facts and in the circumstances of the case. There is practically no reliable evidence to point out that M.O.1 casuarina stick was the weapon wielded by the accused in inflicting injuries on the person of the deceased at or about the time of the occurrence. Further, the weapon M.O.1 seized was found to contain human blood alone, as revealed by Exhibit P. 10 report of the serologist. The blood group of the deceased, as revealed by Exhibit P.10 is ‘O’ group. In the absence of any ‘O’ group blood traceable to the weapon, M.O.1, it cannot be stated, in the absence of any direct testimony, that the said weapon had been connected with the crime, in the sense of the same having been utilised in inflicting the injuries on the person of the deceased. As such, the testimony of P.W. 7 and 12 relatable to the recovery of the weapon of offence, M.O.1 casuarina stick is of no consequence.
16. The author of the first information report is none else than P. W. 3, the mother of the deceased. No doubt, the earliest information, Exhibit P. 14 contains the motive aspect of the prosecution case, as well as all factors relating to the actual occurrence. Such a first informant, namely, P.W. 3 had turned hostile wholesale. The Court below, as stated earlier, did not at all place any reliance upon the testimony of P.W. 3. Such being the case, we are unable to comprehend how reliance could be placed upon the first information report, Exhibit P. 14. Further, the Court below had forgotten the rudimentary principles of criminal law that the first information report cannot at all be construed, as a substantive place of evidence and if at all, it can be used only for the purpose of corroboration or contradiction in the manner allowed by law. The Court below unfortunately placed so much of reliance on Exhibit P.14, as if it is substantive evidence. As such, Exhibit P.14 cannot be expected to render any sort of an assistance in any manner whatever to the prosecution in proving the guillt of the accused.
17. The medical evidence available on record, in the shape of the evidence of the doctor P.W. 11, coupled with Exhibit P. 12, post-mortem certificate, no doubt establishes beyond any pale of controversy that the deceased died of homicidal violence. For the question as to who caused such homicidal violence, there is practically no evidence at all in the case on hand. Such being the case, such medical evidence is of no use to the prosecution.
18. In view of the discussion above, we are of the view that the conviction and sentence, as had been imposed upon the accused appellant by the Court below, are not sustainable and the accused-appellant has to be necessarily acquitted, by giving him the benefit of reasonable doubt.
19. In fine, the appeal is allowed, the conviction and sentence, as had been imposed upon the accused appellant by the Court below under Section 302 of the Indian Penal Code, are set aside and he is acquitted thereof. The bail bond, if any, executed by him shall stand cancelled.
20. Appeal allowed.