IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30/08/2005 CORAM THE HONOURABLE MR. JUSTICE N.DHINAKAR AND THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM CRL. APPEAL NO. 839 OF 2000 and 472 OF 2001 Amaravathi .. Appellant in CA No.839/2000 Idumban .. Appellant in CA No.472/2001 -Vs- State rep. by Inspector of Police Karimangalam Police Station Dharmapuri District. .. Respondent in both the appeals
Appeals preferred against the conviction and sentence passed by the
learned II Addl. Sessions Judge-cum-Chief Judicial Magistrate, Dharmapuri at
Krishnagiri, made in S.C. No. 201 of 1999 dated 10.08.2000 as stated
therein.
For Appellant in : Mr. V.Gopinath, SC, for
C.A. No.472/01 M/s. K.Selvarangan for A-1
For Appellant in : Mr. V.Gopinath, SC, for
C.A. No.839/00 Mr. C.C.S. Pillai for A-2
For Respondent : Mr. V.Jayaprakash Narayanan
Govt. Advocate (Crl. Side)
:COMMON JUDGMENT
(JUDGMENT OF THE COURT WAS DELIVERED BY M.CHOCKALINGAM, J.)
This judgment shall govern the above two appeals. C.A. No.839/00 is
by A-2 and C.A. No.472/01 is by A-1 in S.C. No.201 of 1999 on the file of
the II Addl. Sessions Judge-cum-Chief Judicial Magistrate, Dharmapuri at
Krishnagiri. The appellants were charged under Sections 30 2 and 201 IPC and
on being found guilty, they were sentenced to imprisonment for life and
directed to pay a fine of Rs.1,000/= with a default sentence of three months
for the former offence and they were sentenced to three years rigourous
imprisonment and directed to pay a fine of Rs.1,000/= with a default sentence
of three months for the latter offence. Hence, the present appeals by the
appellants challenging their conviction and sentence.
2. The short facts necessary for the disposal of these appeals are as
follows :-
P.W.1 is the son of the deceased while P.W.3 is the wife of the
deceased. They were residents of Solliyampalli village. A-1 and A-2 also
belong to the same village. On 17.1.99, at about 4.00 p.m., A-1 came to the
house of the deceased and asked P.W.1 as to the whereabouts of his father in
order to take him along with him for having mutton food. P.W.1 informed A-1
that the deceased was in the house of Madheswaran so as to enable A-1 to go
and take the deceased for taking food. Accordingly, A-1 went and took the
deceased outside for taking food. Till about 8.30 p.m. the deceased did not
return. Therefore, P.W.3, the wife of the deceased gave P.W.1 a torch and
asked him to go in search of his father. P.W.1 took the torch, M.O.1 and went
in search of his father. When he was just crossing the cane field of
Ranganathan Chettiar, he heard the distressing cries of his father. When he
reached there, he found A-1 attacking his father with a spade, while A-2 was
stabbing him on his chest and other parts of the body. P.W.1, on seeing this,
shouted for help. A-1 threatened him with dire consequences. Immediately
P.W.1 ran away from the place. Thereafter, A-1 and A-2 took the dead body of
the deceased and dropped it inside the well situate on the backside of the
house of P.W.1.
3. P.W.1, from the scene of occurrence, proceeded to Sengodapatti
village to inform about the occurrence to his uncle, P.W.6. He reached the
place at about twelve midnight and informed about the occurrence to P.W.6.
Both P.W.s 1 and 6 returned to the village and they saw the dead body inside
the well situate at the backside of the house of P.W.1. They took the dead
body out of the well. P.W.3 also came out and the villagers gathered.
4. On 18.1.99 at about 6.00 a.m., P.W.2, the Village Administrative
Officer came to know about the occurrence. A report was given to him, which
stands marked as Ex.P-1 and along with the report, Ex.P-1, P.W.2, the Village
Administrative Officer proceeded to Karimangalam police station where P.W.17,
the Sub-Inspector of Police was on duty to whom Ex.P-1 and Ex.P-3, the report
of the Village Administrative Officer, were handed over. On the strength of
the same, P.W.17 registered a case in crime No.70/99. The printed first
information report, Ex.P-24 was despatched to court.
5. On receipt of a copy of the printed first information report, P.
W.19, the Inspector of Police, took up investigation. He proceeded to the
scene of occurrence, made an inspection in the presence of two witnesses and
prepared an observation mahazar, Ex.P-2 and drew a rough sketch, Ex.P-25.
M.O.s 5 and 6, bloodstained earth and sample earth were recovered under a
mahazar. The dead body was caused to be photographed through P.W.16, the
photographer and the photographs are marked as M.O.14 series. Thereafter, the
investigating officer conducted inquest over the dead body of the deceased in
the presence of witnesses and panchayatadars and prepared inquest report,
Ex.P-25. After the inquest, the dead body was handed over to a police
constable with a requisition to the doctor for conducting autopsy.
6. On receipt of the requisition, P.W.14, Civil Assistant Surgeon
attached to the Government Headquarters Hospital, Dharmapuri, conducted
autopsy on the dead body of the deceased and found the following injuries :-
“1) A laceration back of scalp 12 cm x 3 cm x bone deep underlying bone found
fractured.
2) Cut injury below right cheek 5 cm x 1 cm x = cm bone deep.
3) Cut injury left side cheek 3 cm x 1 cm x = cm. Underlying mandible was
found fractured.
4) Diffuse contusion front of neck.
5) Bleeding right ear and bleeding from mouth present.”
The doctor issued Ex.P-21, the post-mortem certificate, opining that the
deceased would appear to have died of head injury 36 to 48 hours prior to
autopsy.
7. In the meantime, A-1 and A-2 were caught by the villagers and they
were produced at the police station at about twelve noon on 18.1.99 . They
were arrested. A-1 gave a voluntary confessional statement, the admissible
portion of which is marked as Ex.P-18, pursuant to which A-1 produced M.O.6
and A-2 produced M.O.7 and they were seized under a mahazar, Ex.P-7. All the
material objects recovered from the scene of occurrence, from the dead body of
the deceased and from the accused were sent to court along with a requisition
to send them for analysis. Accordingly the material objects were subjected to
analysis, which resulted in the receipt of Ex.P-17, chemical analysis report
and Ex.P-18, serology report. On the completion of investigation, final
report was filed against the appellants by the investigating officer. The
case was committed to the court of sessions, necessary charges were framed by
the sessions court and the case was taken up for trial.
8. In order to substantiate the charges levelled against the accused,
the prosecution marched nineteen witnesses and relied on twentysix exhibits
and fourteen material objects. On the completion of the evidence on the side
of the prosecution, the accused were questioned under Section 313 Cr.P.C. as
to the incriminating circumstances found in the evidence of the prosecution
witnesses. They denied them as false. No defence witness was examined. The
trial court heard the arguments advanced by either side and after a thorough
scrutiny of the materials available before it, found the accused guilty as per
the charges and awarded the punishment as referred to above. Hence, these two
appeals.
9. The learned senior counsel leading the arguments for the
appellants inter alia made the following submissions. In the instant case,
the only eye witness, according to the prosecution, was P.W.1. It is highly
doubtful whether P.W.1 would have been present at the time of occurrence at
all. According to the prosecution, the occurrence has taken place at 9.00
p.m. and it was also witne ssed by P.W.1. But P. W.1, though claimed to
have witnessed the occurrence, has not gone back to inform his mother at his
house which is situate nearby or inform any of the villagers calling for their
help, but he has proceeded to the place of his uncle, P.W.6, which is
admittedly situate eighteen kilometres away from the place of occurrence. It
is pertinent to point out that on the way the Palakode police station is
situate. Neither on the way to Sengodapatti to the house of P.W.6 nor after
seeing him on return from the place to his village along with P.W.6, P.W.1 had
informed the police authorities about the occurrence and lodged a complaint.
It is pertinent to point out that P.W.6 even after the information about the
crime has not started from the place immediately, but has retained P.W.1 for
an hour and only, thereafter, they have started from the place and both of
them after coming to the house of P.W.1 found the dead body. Nowhere in their
evidence it is stated as to how the witnesses came to know that the dead body
was inside the well situate at the back of the house of P.W.1. The further
case of the prosecution, which is highly improbable, was that A-1 and A-2
after attacking and causing the death of the deceased at the place of
occurrence have taken the risk of carrying the dead body for nearly two
furlongs along the field and dropped the body inside the well situate in the
back of the house of P.W.1. This casts a doubt as to whether the occurrence
could have taken place as putforth by the prosecution and whether P.W.1 could
have seen the occurrence at all. In the instant case, even after reaching the
house, neither P.W.1 nor P.W.6 inform P.W.3 the wife of the deceased, who was
sleeping inside the house. According to P.W.3, after hearing the cries at
about 5.00 a.m., she came out of the house and saw the dead body. All these
facts would go to show that P.W.1 could not have seen the occurrence and that
P.W.1 after seeing the dead body has given a report as if he has seen the
occurrence implicating both the accused in the crime. Added further the
learned senior counsel, the overt acts attributed to A-2 is thoroughly
artificial, in that, A-1 attacked the deceased and the deceased fell down and
that A-2 sat on the chest of the deceased and stabbed him. All the above
facts would go to show that the evidence of P.W.1 should have been brushed
aside as one unbelievable and unacceptable. In the circumstances, in the
absence of any acceptable legal evidence other than the evidence of P.W.1, the
prosecution had no case at all. Apart from that, the alleged recovery of the
weapons based on the confessional statement was nothing but a subsequent
introduction in order to strengthen the prosecution case, if possible, but in
vain. In the circumstances, the trial court should have acquitted the accused
outright, but has found them guilty erroneously, which has got to be set right
by this Court.
10. This Court heard the learned Addl. Public Prosecutor appearing
for the State on the above contentions and also perused the recorded evidence,
both oral and documentary.
11. It is no doubt true that the prosecution has succeeded in
establishing the cause of death of the deceased, Sevethan, by examining P.
W.14, the doctor, who conducted autopsy and the post-mortem certificate,
Ex.P-21 issued by him. The doctor has opined that death was on account of
head injury. The evidence of the doctor and the postmortem certificate,
Ex.P-21 issued by him, conclusively establish that the deceased, Sevethan,
died on account of homicidal violence. The said fact was not disputed by the
appellants before the trial court nor it is disputed before this Court. On
the medical evidence we hold that the deceased died on account of homicidal
violence.
12. In the instant case, the prosecution came with specific charges
against the appellants that both of them attacked the deceased at about 9.00
p.m. on the night of 17.1.99 and after putting an end to the life of the
deceased, the appellants took the dead body from the scene of occurrence and
dropped the same into the well, which is situate on the backside of the house
of P.W.1. In the instant case, P.W.1 was the only eye witness to the
occurrence. It is settled principle of law that even if the prosecution has
got only one eye witness and if the witness is believable, the Court could
render a judgment of conviction. But in the instant case, P.W.1 was the son
of the deceased and, hence, his evidence has got to be looked into and
scrutinised with great care and caution. If that test is exercised on his
evidence, this Court has no option other than to reject his testimony as one
false.
13. According to the prosecution, the occurrence has taken place at
about 9.00 p.m. when P.W.1 went in search of his father with the torch, M.O.1
and that when he was just crossing the cane field of Ranganatha Chettiar, he
heard the distressing cries of his father and when he looked that side, he
found A-1 and A-2 attacking his father with a spade and knife and when he
shouted he was threatened and that he ran away from the place. Had it been
true, the natural conduct of any prudent person in the circumstances would be
to go to his house immediately and inform his mother and to call the
neighbours and villagers for help. But P.W.1 did not do so. Instead, he
proceeded all the way to Sengodapatti village, which is situate eighteen
kilometres away, in the dark hours in order to inform his uncle, P.W.6.
According to the evidence of P.W.6, even after P.W.1 informed him, he did not
immediately proceed from his house, but he retained P.W.1 for an hour and,
thereafter both of them started. It is an admitted fact that from the place
of occurrence when P.W.1 proceeded to Sengodapatti, Palakode police station is
situate on the way. It is pertinent to point out that neither on the way to
Sengodapatti to the house of P.W.6 nor after seeing him and on return from the
place to his village along with P.W.6, P.W.1 had informed the police
authorities about the occurrence and lodged a complaint, but both of them,
namely, P.W.s 1 and 6 went directly to the house of P.W.1 and found the body
in the well situate on the backside of the house of P.W.1. It is not the
evidence of P.W.1 that he saw both the accused carrying the dead body and
dropping it inside the well.
14. At this juncture it has to be pointed out that it is highly
artificial on the side of the prosecution to putforth a case that the
appellants, after committing the murder, took the dead body from the scene of
occurrence to the well, which is situate at the backside of the house of
P.W.1, which is about two furlongs away. It is to be pointed out that both
the appellants would have entertained a risk of taking the body, which nobody
would take and, therefore, it is highly doubtful whether the occurrence would
have taken place as putforth by the prosecution.
15. Now apart from the above, the further conduct of P.W.1 that he
did not inform his mother even after returning to the house bringing along
with him P.W.6 is too tall a claim to be believed and the same is also
falsified by the evidence of P.W.3 herself. According to P.W.3, who is the
wife of the deceased, after sending her son P.W.1 during night hours in search
of the deceased, she went to bed and she woke up only at 5.30 a.m. on hearing
the alarm and she opened the house and she found P.W.s 1 and 6 in the backside
of the house and the body of the deceased was also lying there. This
therefore shows that P.W.3 came to know about the occurrence only about 5.30
a.m., nearly eight and half hours later to the occurrence. The evidence of
P.W.3 falsifies the evidence of P.W.1 and casts a doubt on the evidence of P.
W.1 as to whether he could have witnessed the occurrence.
16. The facts, which we have narrated above, would go to show that in
the instant case the evidence of P.W.1 remains uncorroborated and, therefore,
it would be highly unsafe to accept such an interested and uncorroborated
testimony and find the appellants guilty, which the trial court has failed to
appreciate and, therefore, the appellants are entitled for acquittal.
17. In result, the conviction and sentence awarded by the trial court
are set aside and the appellants are acquitted of all the charges framed
against them. The criminal appeals are allowed. It is reported that the
appellants are on bail. Bail bonds executed by them shall stand cancelled.
Index : Yes
Internet : Yes
GLN
TO
1) The II Addl. Sessions Judge-cum-Chief Judicial Magistrate
Dharmapuri at Krishnagiri.
2) -Do- Thro’ The Principal Sessions Judge, Dharmapuri at Krishnagiri.
3) The District Collector, Dharmapuri.
4) The Director General of Police, Chennai.
5) The Public Prosecutor, High Court, Madras.
6) The Superintendent of Central Prison, Salem.
7) The Inspector of Police, Karimangalam Police Station, Dharmapuri Dt.