IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15/11/2002
CORAM
THE HONOURABLE MR.JUSTICE P.SHANMUGAM
AND
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
Criminal Appeal No.616 of 1998
1. Chandramoorthy
2. Lakshmanaperumal .. Appellants
-Vs-
State of Tamil Nadu
rep. by the Inspector of Police
Kayathar, Tuticorin District. .. Respondent
PRAYER: Against the judgment dated 20.7.1998 in S.C.No.124 of 1994 of the
learned Principal Sessions Judge, Tuticorin.
!For Appellants : Mr.A.Padmanabhan
for Mr.M.S.Kandasamy
^For Respondent : Mr.A.Navaneethakrishnan
Addl. Public Prosecutor
:JUDGMENT
P.D.DINAKARAN,J.
The appellants are the accused 1 and 2 in S.C.No.124 of 1995 on the
file of the learned Principal Sessions Judge, Tuticorin, who were convicted
for an offence punishable under Sections 341 and 302 read with Section 34 of
the Indian Penal Code and sentenced for one month simple imprisonment for the
offence under Section 341 of Indian Penal Code and for life imprisonment for
the offence punishable under Section 302 read with Section 34 Indian Penal
Code, both to run concurrently, by judgment dated 20.7.1998.
2. The appellants, who are accused 1 and 2, along with one another
accused by name Dharmar were charged for an offence punishable under Section
341 and 302 read with 34 Indian Penal Code with regard to alleged murder of
one Pitchiah at about 6.00 pm on 17.12.1993 between Kothali and Kollankinaru
Village, at the outskirts of Kothali village within the jurisdiction of
Kadambur Police Station, by inflicting fatal injuries on the vital parts of
the body of the deceased Pitchiah, which resulted in his instantaneous death.
3.1. The case of the prosecution is that the deceased Pitchiah, who
is the husband of P.W.1, had three daughters. The first two daughters were
already given in marriage and the third daughter, Ayyammal, who was examined
as P.W.3, was asked for marriage to the first accused (Chandramoorthy). Since
P.W.1 and her family members were not willing for the marriage between P.W.3
and first accused, P.W.3 was given in marriage to one Radhakrishnan. The
marriage between Radhakrishnan and P.W.3 sowed the seeds of enmity between the
family of the deceased and the first accused.
3.2. On the fateful day, namely on 17.12.1993 at 4.00 pm, the
appellants, who are accused 1 and 2, along with one another accused Dharmar
came to the house of P.W.1 and threatened P.W.3 that they would see that
Pitchiah, who had gone to Kothali Esakkiamman temple, would not return home.
At that time, P.W.1’s second son-in-law Mariappan, who was examined as P.W.2
came to the reside nce of P.W.1 from Kovilpatti. Apprehending that the
accused might cause some danger to her husband Pitchiah, P.Ws.1 and P.W.2 went
in search of Pitchiah from 4.30 pm. When P.Ws. 1 and 2 came near Kothali
village at about 6.00 pm, they saw accused 1 and 2, along with one another
accused Dharmar sitting under the Udai tree. When Pitchiah was returning from
Esakkiamman temple on the way to his house, the first accused ran and gave
cuts to Pitchiah by using an Aruval and the same was thwarted by Pitchiah with
both hands. The right hand wrist of Pitchiah was almost severed and hanging.
In the meanwhile, another accused Dharmar ran and cut Pitchiah by an Aruval on
the right hand shoulder and the second accused ran and cut Pitchiah by an
Aruval at his neck, and as a result Pitchiah fell down immediately. The first
accused again cut Pitchiah at his chin and another accused Dharmar cut
Pitchiah by an Aruval on the left flank. As a result, Pitchiah died
instantaneously on the spot. On hearing P.Ws.1 and 2 shouting and crying, all
the three accused ran away from the scene of occurrence with their weapons.
3.3. As it was raining at that time, nobody came forward to help P.
Ws.1 and 2 and therefore, they returned home and on the next day morning,
namely on 18.12.1993, they went to Kadambur Police Station and lodged the
complaint, which is marked as Ex.P1. On receipt of the complaint (Ex.P1), the
Investigation Officer (P.W.13) went to the spot in the presence of Village
Administrative Officer (P.W.5) and Village Assistant (Thalaiyari) (P.W.6),
prepared a sketch of the scene of occurrence, which is marked as Ex.P18, and
conducted inquest on the dead body of deceased Pitchiah in the presence of
witnesses and Panchayatdars and prepared inquest report marked as Ex.P19,
examined witnesses and recorded their statements and thereafter shifted the
body of deceased Pitchiah to Government Hospital. Postmortem was conducted by
Dr.Meena, who was examined as P.W.8, through whom a postmortem certificate was
marked as Ex.P12. On 20.12.1993, the Investigation Officer (P.W.13) arrested
the accused 1 and 2 herein and one another accused Dharmar. During the course
of investigation, the third accused Dharmar died and therefore, the final
report was filed only against the first and second accused for the offences
under Sections 341 and 302 read with 34 Indian Penal Code, pursuant to which
the case was committed for trial.
4.1. On behalf of the prosecution 13 witnesses (P.Ws.1 to 13) were examined,
through whom 21 documents (Exs.P1 to P21) were marked, of which it is suffice
to refer the following witnesses and documents that are relevant. The wife of
the deceased Pitchiah was examined as P.W.1; son-in-law of deceased Pitchiah
and P.W.1 was examined as P.W.2, one Ayyammal viz., third daughter of deceased
Pitchiah and P.W.1, was examined as P.W.3.
4.2. P.W.3 deposed that the accused 1 and 2 along with one another accused
Dharmar came to the house of the deceased and P.W.1, where P.W.3 was present
and threatened that the deceased Pitchiah, who had gone to Kothali Esakiamman
temple, would not return home. P.Ws.1 and 2 were cited as eye-witnesses
narrating the occurrence. P.W.4 is the Poojari of Esakkiamman temple, who
deposed that the deceased Pitchiah came to the temple on the fateful evening.
P.Ws.5 and 6 are Village Administrative Officer and Village Assistant
(Thalaiyari), who spoke about the inquest conducted on the body and the
investigation by P.W.1 3 based on the complaint lodged by P.W.1 marked as
Ex.P1. P.W.8 is the Doctor, who conducted postmortem, through whom Postmortem
Certificate marked as Ex.P.12 was marked.
5. In the light of the evidence set out above, the learned Principal Sessions
Judge, Tuticorin, by judgment dated 20.7.1998 in S.C.No.124 of 1995 found the
accused 1 and 2 guilty for the offence punishable under Section 341 and 302
read with 34 of Indian Penal Code and sentenced the accused for one month
simple imprisonment for the offence punishable under Section 341 Indian Penal
Code and life imprisonment for the offence punishable under Section 302 read
with 34 Indian Penal Code, both to run concurrently. Hence the above appeal.
6.1. Mr.A.Padmanabhan, learned counsel for the appellants effectively brought
out the anomalies in the case of the prosecution pointing out the strange
conduct and behaviour of P.Ws.1 and 2 immediately after the alleged murder of
Pitchiah by the accused 1 and 2 and one another Dharmar, which was said to be
witnessed by them, and contends that the evidence of P.Ws.1 and 2 are not
trustworthy.
6.2. Mr.A.Padmanabhan, learned counsel for the appellants invited our
attention to the improbabilities in the evidence of P.Ws.1 and 2, which was
the foundation to the case of the prosecution.
7. We have given careful consideration to the submissions of the learned
counsel for the appellants and have minutely examined the evidence.
8. P.W.1 is the wife of the deceased Pitchiah. P.W.2 is the second
son-in-law of the deceased Pitchiah and P.W.1. As per the evidence of P.Ws.1
and 2, the occurrence had taken place at about 6.00 pm on 17.12.1993 in a
jungle like place, which is hardly 2 kilometers away from the permanent place
of residence of P.W.1 and the deceased. Both P.Ws.1 and 2 have stated that
the occurrence had taken place at 6.00 pm and it was raining at that time and
therefore, they could not get any help from villagers, hence they returned
home and stayed that night in the house and went to the Kadambur Police
Station next day morning at 8.00 am and lodged a complaint marked as Ex.P1.
This portion of evidence of P.Ws.1 and 2 is totally unbelievable. It is quite
improbable to imagine P.W.1, wife of the deceased Pitchiah, who is said to
have witnessed the heinous murder of her husband by her naked eyes, would
leave the body of her husband at the scene of occurrence itself unmindfully,
even though it was raining, and return to her house, spend the night at her
residence and then lodge the complaint on the next day at Kadambur Police
station. It is not her case that there was no male member in the family to
assist because P.W.2 himself is second son-in-law of the deceased Pitchiah and
P.W.1, who indeed went in search of Pitchiah on the eve of 17.12.1993,
apprehending accused would cause danger to the deceased, and is also said to
be an eyewitness to the occurrence.
9. That apart, P.Ws.1 and 2 have stated that the house of Village Assistant
(Thalaiyari)(P.W.6) is located five houses away from the house of the deceased
and P.W.1. P.Ws.1 and 2, who are to have directly witnessed the brutal murder
of Pitchiah at about 6.00 pm on 17.12.1993 , even after returning to the
village and staying that night in her residence, have not chosen to inform
about the occurrence to the Village Assistant (Thalaiyari) (P.W.6). This
conduct and behaviour of P. Ws.1 and 2, who are nonetheless the wife and
son-in-law of the deceased Pitchiah respectively, raises doubt in our minds to
question the very credibility of the testimony of P.Ws.1 and 2.
10. Moreover, P.Ws.1 and 2 had chosen to lodge the complaint to the police
about the atrocious murder only at about 8.00 am on 18.12.1993 before the
Kadambur police station. In the complaint, marked as Ex. P1, P.Ws.1 and 2
have specifically stated that they directly witnessed the overt act of each of
the accused attacking the deceased Pitchiah on vital parts of the body,
inflicting fatal injuries by aruval, which caused the instantaneous death of
the deceased Pitchiah. Even though P.W.1 had explained that since it was
raining on the night of 17.12.1993, they could not lodge the complaint earlier
than 8.00 am on 1 8.12.1993, no convincing explanation comes out from P.Ws.1
and 2 for not reporting the occurrence immediately to the Village
Administrative Officer (P.W.5) or Village Assistant (Thalaiyari) (P.W.6) or
any of the villagers, in spite of their direct witness to the cruel murder of
the deceased Pitchiah. The story of the prosecution in this regard, in our
considered opinion, is highly improbable, unreliable and therefore is to be
rejected as totally fanciful and imaginary as the same is tainted with
concocted evidence of P.Ws.1 and 2.
11. The explanation of P.Ws.1 and 2 that it was raining on the night of
17.12.1993 and therefore, leaving the body of the deceased Pitchiah at the
scene of occurrence, they returned to the village, stayed that night and then
went to the Kadambur Police Station next day at 8.0 0 am, and the hypothesis
suggested for their conduct, viz., leaving the body of the deceased at the
scene of occurrence as it was raining after the occurence, is in our
considered opinion, inconceivable and farcical, and gives room to question the
very credibility of their evidence. Every evidence relied upon for a safe
conviction should have a probative link, strong or weak, but the same must be
made out with reasonability and certainty. Once the evidence of P.Ws.1 and 2,
which is the foundation to the prosecution case is itself collapsed for want
of reliability and credibility, we are convinced that it may not be safe to
convict the accused merely based on the evidence of the Investigation Officer
(P.W.13), Doctor (P.W.8) who conducted the postmortem, and postmortem
certificate marked as Ex.P12, in the absence of any other direct or
circumstantial evidence to hold the accused guilty.
12. Hence, holding that the prosecution has failed to prove its case beyond
all reasonable doubt, we are obliged to interfere with the order of conviction
and sentence dated 20.7.1998 in S.C.No.124 of 1995 of the learned Principal
Sessions Judge, Tuticorin, set aside the same, allow the appeal, with a
direction to the respondent to release the accused forthwith, unless and
otherwise they are required in any other crime. No costs.
Index: Yes
Internet:Yes
Sasi
To:
1. The Principal Sessions Judge, Tuticorin.
2. The District Collector, Tuticorin.
3. The Director General of Police, Chennai.
4. The Superintendent, Central Prison, Palayamkottai.
5. The Public Prosecutor, Chennai.
6. The Inspector of Police, Kayathar, Tuticorin Dist.