IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.09.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.492 OF 2006 1.Annadurai 2.Mathaiyan 3.Iyyandurai .. Appellants Vs. State by Inspector of Police, Kolathur Police Station, Salem District .. Respondent This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of conviction and sentence made in S.C.No.39 of 2005, dated 27.04.2006 on the file of the I Additional Sessions Judge, Salem. For Appellants : Mr.V.K.Muthusami, Senior Advocate for Mr.M.M.Sundresh For Respondent : Mr.V.R.Balasubramanian, APP - - - - JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges the judgment of the Court of I Additional Sessions Division, Salem made in S.C.No.39 of 2005, whereby the appellants three in number before this court along with three others stood charged as follows:
I - A-3 - S.147 IPC II - A-1,2 & 4 to 6 - S.148 IPC III - A-1 and A-3 - S.302 IPC IV - A-2 and A-4 to A-6- S.302 r/w S.149 IPC V - A-2 and A-3 - S.307 IPC VI - A-1 and A-4 to A-6- S.307 r/w S.149 IPC
On trial, A-1 was found guilty under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1000/- in default to undergo one year R.I. A-2 was found guilty under Section 324 IPC and was sentenced to undergo six months R.I. and A-3 was convicted under Section 323 IPC and sentenced to undergo two months S.I. The trial court, however, acquitted A-4 to A-6 in respect of the charges levelled against them. Hence this appeal at the instance of A-1 to A-3.
2.The factual scenario, which led the investigation to bring forth the said sessions case can be stated thus:
a)P.W.1 is the wife of deceased Ayyandurai. P.W.2 is the brother and P.W.3 is the son of P.W.1. They belonged to Govindapadi. P.Ws.4,5 and 6 also belonged to the same place. P.W.1 along with her husband was residing in a thatched shed situated in their land. A-1 and A-4 are the sons-in-law of A-2. A-3 is the brother-in-law of A-2. A-5 and A-6 are the sons of A-2. They also belonged to the same place. The lands of A-2 and the deceased are situated adjacent to each other. There was scarcity of water supply and they had water only from the nearby Kathiri hills. In order to regularise the uneven water supply, the deceased formed a canal in his land. The second accused was complaining that he restrained the water flow to his land. Thus, there was a quarrel and the matter was reported to P.W.4, who also went to the place and pacified the situation by advising them. But, A-2 was not ready to pay heed to the advice of P.W.4 and thus, he was in inimical terms.
b)On the date of occurrence, namely on 24.01.2004 at about 1.30 hours in the night, P.W.1 and her husband Ayyandurai were actually sleeping in their thatched shed. P.W.1 was able to hear the sound that somebody was walking in their land. Immediately, she took the torch light, switched it on and found A-1 to A-6 armed with deadly weapons. The deceased also woke up. Immediately, A-1 attacked the deceased on his left side cheek with aruval. A-2 attacked P.W.1 with aruval and A-3 attacked P.W.1 with a stick. The other accused also joined with them in attacking the deceased and P.W.1. On hearing a distressing cry, P.Ws.2 and 3 rushed to the spot from the nearby land and they also witnessed the occurrence. All the accused fled away from the place of occurrence along with the weapons.
c)P.W.1 and the deceased were immediately taken to Mettur Government Hospital. P.W.8, the Doctor medically examined the deceased at about 3.40 hours, gave first aid and advised to take the severely injured Ayyandurai to the Government Hospital, Salem. Ex.P.16 the accident register was marked in that regard. When he was taken to the Government Hospital, Salem, he died on the way and hence he was brought back to Mettur Government Hospital and the dead body was kept in the mortuary. Ex.P.17, the Accident Register was marked in this regard. An intimation was also given to the police station.
d)P.W.9, the Doctor attached to the Government Hospital, Mettur medically examined P.W.1 and has issued Ex.P.20, the wound certificate. On intimation, P.W.15, the Sub Inspector of Police, Kolathur Police Station, went to the Government Hospital, Mettur and recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which, a case came to be registered in Crime No.13 of 2004 under Sections 302 and 307 IPC. Ex.P.30, the F.I.R. was despatched to the Court.
e)P.W.16, the Inspector of Police, on receipt of the copy of the F.I.R., went to the Government Hospital, Mettur and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.31, the inquest report. Thereafter, the dead body was sent for the purpose of autopsy along with requisition.
f)P.W.10, the doctor attached to the Government Hospital, Mettur, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.22, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to blood vessels cut and multiple fracture bone.
g)P.W.16 has proceeded with the investigation. He went to the scene of occurrence and made an inspection in the presence of the witnesses and prepared Ex.P.8, the observation mahazar and Ex.P.32, the rough sketch. He also recovered the material objects including bloodstained earth and sample earth under a cover of mahazar. Pending investigation, P.W.16 arrested A-1 to A-3 on 27.01.2004. They voluntarily came forward to give confessional statements, which were recorded in the presence of the witnesses. The admitted portion of the confessional statements of A-1 to A-3 were marked as Exs.P.10 to 12 respectively. Pursuant to the confessional statements, they produced material objects, which were recovered under a cover of mahazar. They were remanded to judicial custody. The Investigating Officer altered the case and sent Ex.P.34, the altered express report to the court. On 6.4.2004, on information, the police arrested A-4 and he voluntarily gave confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.35. Pursuant to the same, A-4 produced M.O.19, TVS XL 50, which was recovered under a cover of mahazar. The accused Nos.5 and 6 surrendered before the court concerned. All the material objects recovered from the place of occurrence, from the dead body of the deceased and also the M.Os recovered from the accused persons pursuant to the confessional statements, were subjected to chemical analysis by the Forensic Science Department, which resulted in three reports, namely Ex.P.27, the Chemical Analyst Report, Ex.P.28, the Serologist’s report and Ex.P.29, the blood group report. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and relied on 36 exhibits and 19 M.Os. On 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 prosecution witnesses, which they flatly denied as false. No defence witness was examined. After hearing the arguments advanced and scrutinising the materials available, the trial court took the view that the prosecution has proved the case only against A-1 to A-3 in respect of the charges mentioned above and has awarded punishments as referred to above and it has acquitted A-4 to A-6 in respect of the charges levelled against them. Hence this appeal has been preferred at the instance of the appellants herein.
4.Advancing arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions:
a)The prosecution has miserably failed to prove its case and hence the appellants should have been acquitted. In the instant case, according to the prosecution, the occurrence has taken place at about 1.30 hours in the night and there was no electric light. According to P.W.1, they had torch light and it was switched on, with which she was able to see the occurrence. So far as the evidence of P.Ws.2 and 3 are concerned, it would be quite clear that they could not have seen the occurrence at all, because they were coming from the nearby land. According to prosecution, P.W.1 was not only an eyewitness, but also an injured witness. Her evidence was thoroughly unreliable for so many reasons. According to P.W.1, she has given narration that A-2 and A-3 attacked her. But her version was thoroughly found to be different from the medical evidence.
b)At the earliest, she has stated before P.W.8, the Doctor that the deceased was attacked by unknown persons. According to the prosecution case, previously, there was a water dispute and there arose a quarrel between the deceased and the accused. Thus, she would have got a clear knowledge about the same. Had it been true that she has actually witnessed the occurrence, there is no need for her to tell before the Doctor that unknown persons have attacked the deceased.
c)Added further the learned Senior Counsel that in the instant case, according to P.W.1, she gave complaint to the police that 6 persons have attacked them, but according to the police, they have not taken the case as per her version. On the contrary, P.W.15, the Sub Inspector of Police would state that on intimation, he went to the Government Hospital, Mettur and recorded the statement of P.W.1. It is pertinent to point out that when the deceased and P.W.1 were proceeding to the Government Hospital, the police station is situated on the way and hence there is no reason to disbelieve the evidence of P.W.15 in this regard. Had it been true that she has given the statement in respect of 6 persons, that first information given by P.W.1 has been suppressed and what was actually placed before the court was not the first information.
d)The further contention of the learned counsel for the appellants is that originally, the case was registered against three; and that pursuant to the confessional statement given by A-1 at the time of investigation, A-4 to A-6 were added. At this juncture, it also casts a doubt whether the version given by P.W.1 as if six persons were present at the time of occurrence might be true. If to be so, when P.W.1 has stated categorically before the Doctor that they were unknown persons, the entire evidence of P.W.1 was thoroughly unreliable. All the factual positions have not been looked into by the learned trial Judge. Further the medical evidence, in the instant case, did not support the prosecution case.
e)Apart from that, the prosecution relied on the recovery alleged to have been made from A-1. It is pertinent to point out that according to the evidence of P.W.2, all the material objects were recovered from the place of occurrence only on the next day. If to be so, the alleged arrest and recovery made by the prosecution have got to be rejected. In short, it can be stated that the prosecution had no reliable evidence at all and hence the appellants are entitled for acquittal in the hands of this court.
5.The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
6.It is not in controversy that Ayyandurai, the husband of P.W.1, following the incident that took place on 24.01.2004 at about 1.30 hours in the night, was taken to the Government Hospital, Mettur, wherefrom he was taken to the Government Hospital, Salem, but on the way he died and hence he was brought back to the Government Hospital, Mettur. The dead body was subjected to post-mortem by P.W.10, the Doctor, who has issued Ex.P.22, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to blood vessels cut and multiple fracture bone. He has also given evidence before the Court to that effect. The fact that the deceased died out of homicidal violence was never questioned by the appellants at any stage of proceedings. Hence without any impediment, it could be recorded so.
7.The prosecution, to start with, has mentioned three persons as accused in the F.I.R. Thereafter, pursuant to the confessional statement alleged to have been given by A-1 at the time of investigation, three more persons as A-4 to A-6 were added and thus, they were before the trial court and charges were levelled against them. But, on trial, A-4 to A-6 were acquitted, while the trial court found A-1 to A-3 guilty. The prosecution in order to establish the charges levelled against the accused, examined three witnesses as eyewitnesses. It could be seen from the evidence of P.W.1 that P.W.2 and 3 could not have seen the occurrence at all, since they actually came to the place of occurrence from their land after hearing the distressing cry and thus, the evidence what was available for the prosecution was the evidence of P.W.1. P.W.1 was not only an eyewitness, but also an injured witness. The Court is mindful of caution made by the Apex court and it is also a settled proposition of law that in a given case where the eyewitness is happened to be an injured witness, ordinarily, the court should not discard his testimony, unless and until a strong circumstance is noticed by the court or a reason is brought about. In the instant case, after applying the said principle, the court is afraid whether it could sustain conviction on the evidence of P.W.1.
8.In the instant case, the occurrence has taken place during witch hour. According to P.W.1, she was sleeping along with her husband. It is not the case of the prosecution that there was any flow of electric energy. Even after hearing the sound, P.W.1 woke up and switched on the torch light and was able to see the accused. Immediately, after the occurrence was over, the severely injured husband was taken to Mettur Government Hospital. The earliest document what is before the court is Ex.P.16, the Accident Register, which came into existence at about 3.40 a.m. on the date of occurrence. A perusal of the same would clearly indicate that she has stated before the Doctor that the assailants were unknown persons. It is the case of the prosecution that the accused party and P.Ws. and the deceased were on inimical terms. If to be so, all the assailants should have actually been known to them. If P.W.1 really witnessed the occurrence, there is no need for her to speak to the Doctor that the assailants were unknown persons. Thus, it has got to be commented that it is highly unsafe to accept the testimony of P.W.1.
9.Apart from that, according to P.W.1, after the occurrence was over, she went to the police station and gave an oral statement and the same was recorded and she affixed her thumb impression and she gave a report against six persons, but that was not actually proceeded with. At this juncture, it casts a further doubt whether three are involved or six are involved in the occurrence. The F.I.R. would clearly reveal that there were only three persons. According to P.W.15, the Sub Inspector of Police, on intimation from the Government Hospital, he proceeded to the hospital, where he recorded Ex.P.1, the statement of P.W.1. Ex.P.1 was to the effect that there were only three assailants. Therefore, it also casts a doubt whether the F.I.R. has come into existence as put forth by the prosecution. If the evidence of P.W.1 has got to be accepted, Ex.P.1 was not the first information. If Ex.P.1 has got to be accepted, then the evidence of P.W.1 has got to be rejected. Both put together would indicate that it would be highly unsafe to accept the testimony of P.W.1.
10.In the instant case, the prosecution relied on the recovery of material objects, namely weapons of crime and M.O.17, shirt from A-1 pursuant to his confessional statement. As rightly pointed out by the learned counsel for the appellants, this part of the evidence has got to be brushed aside for the simple reason that according to P.W.2, the material objects were recovered on next day to the occurrence. Hence the alleged arrest of A-1 and the recovery of material objects as put forth by the prosecution is highly improbable and unbelievable. Further, the evidence of P.W.1 cannot be accepted from the medical evidence adduced. The medical evidence is not consistent with the evidence of ocular testimony projected through P.W.1.
11.Needless to say that in a case like this, the court can sustain conviction on a solitary testimony and an uncorroborated testimony, if it has inspired the confidence of the court. In the instant case, this Court is unable to accept the evidence of P.W.1, since it did not inspire the confidence of the Court. Under these circumstances, accepting such an evidence and sustaining the conviction would be highly unsafe in the eye of law. The court is of the considered opinion that the prosecution has not proved the case beyond reasonable doubt and hence the benefit of doubt should go to the appellants and therefore, they are to be acquitted.
12.In the result, the conviction and sentence imposed on the appellants by the trial court are set aside and the appellants are acquitted of the charges levelled against them. The bail bonds, if any executed by A-1 and A-2, shall stand terminated and the fine amount if any paid by A-1 is ordered to be refunded to him. Accordingly, this criminal appeal is allowed.
(M.C., J.) (M.V., J.)
11.09.2008
Index : Yes
Internet : Yes
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To
1.The I Additional Sessions Judge,
Salem.
2.The Inspector of Police,
Kolathur Police Station,
Salem District.
3.The Additional Public Prosecutor,
High Court, Madras.
M.CHOCKALINGAM, J.
AND
M.VENUGOPAL, J.
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CRL.A.NO.492 OF 2006
11.09.2008