Mahendran vs State Rep. By on 8 February, 2008

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Madras High Court
Mahendran vs State Rep. By on 8 February, 2008
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 08/02/2008

CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU

CRL.A.(MD) No.298 of 2007

1.Mahendran
2.Nehru								.. Appellants


vs

State rep. by
Inspector of Police
Sattur Town Police Station
Virudhunagar District
in Cr.No.442/2005						.. Respondent


	Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure
against the judgment of the Principal Sessions Judge, Virudhunagar District at
Srivilliputtur, in S.C.No.92/2006 dated 15.6.2007.

!For Appellants		...  Mr.K.Chellapandian
			      Senior Counsel
			     for Mr.G.Mari Muthu

^For Respondent		...  Mr.C.Daniel Manoharan
			     Additional Public Prosecutor


:JUDGMENT

(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)

Challenge is made to a judgment of the Principal Sessions Division,
Virudhunagar at Srivilliputtur, made in S.C.No.92 of 2006 whereby these
appellants who were ranked as A-1 and A-2 respectively, stood charged namely A-1
and A-2 under Sections 341 and 506(ii) of IPC, A-1 under Sec.302 of IPC and A-2
under Sec.302 read with 34 of IPC.

2.On trial, A-1 and A-2 were found guilty under Sec.341 of IPC and awarded
one month Simple Imprisonment. A-1 was found guilty under Sec.302 of IPC, while
A-2 was found guilty under Sec.302 read with 34 of IPC. A-1 and A-2 were
awarded life imprisonment and a fine of Rs.1,000/- with default sentence. Both
the accused were acquitted of the charge under Sec.506(ii) of IPC. Hence, this
appeal has arisen.

3.The short facts necessary for the disposal of this appeal can be stated
thus:

(a) P.W.1 is the wife of the deceased Mariappan. They were living at
Gandhi Nagar, Sattur. The accused also belonged to the same place. They were
known to each other for a longtime. P.W.1 and her husband were selling pigs.
Six months prior to the occurrence, five of their pigs were found missing. They
suspected the act of A-1. Thereafter, a panchayat was convened in which a
decision was taken that A-1 should pay a sum of Rs.2,500/- to the deceased.
But, A-1 did not pay. Hence, there was a quarrel between A-1 and the deceased.
Following the same, A-1 gave a complaint against the deceased, and the deceased
was also arrested. He came out on bail. Two cows of the deceased also died.
P.W.1 and the deceased suspected that A-1 would have administered poison to the
cows as a result of which they died. A criminal case was also pending against A-
1 in that regard. Thus, the deceased and A-1 were on inimical terms.

(b) On the date of occurrence namely 30.8.2005, at about 8.00 P.M., when
the deceased and his wife P.W.1, were returning from a temple in a bicycle, both
the accused waylaid the deceased and P.W.1 in front of the house of one
Dr.Gnanadurai. Immediately, the deceased got down from the cycle, and he was
about to run in order to escape from the accused. At that time, A-2 caught hold
of the legs of the deceased, while A-1 attacked him with an aruval on the neck
and on the wrist. Immediately, P.W.1 due to fear went over to the house and
informed to P.W.3. P.W.3 wrote the complaint as dictated by P.W.1. P.W.1 signed
the complaint, which is marked as Ex.P1. They went to the respondent Police
Station and gave Ex.P1, the report, to P.W.11, the Sub Inspector of Police, who
was present at the Police Station, at about 8.30 P.M. On the strength of Ex.P1,
a case was registered in Crime No.442/2005 under Sections 341 and 302 of I.P.C.
The printed FIR, Ex.P17, was despatched to the Court along with Ex.P1.

(c) P.W.12, the Inspector of Police, on receipt of the copy of the FIR,
took up investigation, proceeded to the spot, made an inspection in the presence
of witnesses and prepared an observation mahazar, Ex.P10, and a rough sketch,
Ex.P18. Then, he recovered bloodstained earth and sample earth from the place
of occurrence under a cover of mahazar. He also recovered other material
objects from the place of occurrence. Then, he conducted inquest on the dead
body of Mariappan in the presence of witnesses and panchayatdars and prepared an
inquest report, Ex.P19. Thereafter, the dead body was sent to the Government
Hospital for the purpose of autopsy along with a requisition.

(d) P.W.6, the Assistant Surgeon, attached to the Government Hospital,
Sattur, on receipt of the requisition, conducted autopsy on the dead body of
Mariappan and issued a postmortem certificate, Ex.P2, with her opinion that the
deceased died of multiple injuries in the neck caused haemorrhagic shock and
transected head.

(e) The Investigator came to know that A-1 and A-2 surrendered before the
Court. As far as A-1 was concerned, an application was made on 12.9.2005, for
police custody. The same was ordered. He was taken out and was also
interrogated. A-1 came forward to give a confessional statement voluntarily,
which was recorded in the presence of witnesses. The admissible part of the
same is marked as Ex.P4, pursuant to which he took the police party and produced
M.O.1, aruval, M.O.2, shirt, and M.O.3, Kaili, which were recovered under a
cover of mahazar, Ex.P5. A-1 was sent again for judicial remand.

(f) As regards A-2, an application was made on 14.9.2005 for police
custody. The same was ordered. A-2 was taken out and interrogated. He
volunteered to give a confessional statement, which was recorded in the presence
of witnesses. The admissible part is marked as Ex.P20. He took the police
party and produced bloodstained full arm shirt, M.O.12, and bloodstained dothi,
M.O.13, which were recovered under a cover of mahazar, Ex.P21. He was sent again
for judicial remand.

(g) All the material objects, recovered from the place of occurrence and
from the dead body, and the material objects recovered on production by the
accused pursuant to the confessional statements, were subjected to chemical
analysis by the Forensic Sciences Department, which resulted in two reports
namely Exs.P15 and P16, the Chemical Analyst’s reports, and Ex.P22, the
Serologist’s report. P.W.13, the Inspector of Police, took up further
investigation. On completion of investigation, the Investigating Officer filed
the final report before the Judicial Magistrate.

4.The case was committed to Court of Session, and necessary charges were
framed. In order to substantiate the charges, the prosecution examined 13
witnesses and also relied on 22 exhibits and 13 material objects. On completion
of the evidence on the side of the prosecution, the accused were questioned
under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the
evidence of the prosecution witnesses which they flatly denied as false. No
defence witness was examined. The trial Court heard the arguments advanced on
either side, took the view that the prosecution has proved the case beyond
reasonable doubt, found them guilty as per charges except the charge under
Sec.506(ii) IPC, and awarded imprisonment which is the subject matter of
challenge before this Court.

5.Advancing the arguments on behalf of the appellants, the learned Senior
Counsel Mr.K.Chellapandian would submit that the prosecution rested its case on
the direct evidence by examining three eyewitnesses namely P.Ws.1, 2 and 5; that
as far as P.Ws.2 and 5 are concerned, they have turned hostile; and thus, the
prosecution had only the evidence of P.W.1; that the evidence of P.W.1 was
uncorroborated; that she was the wife of the deceased and hence, interested;
that as far as her evidence is concerned, it is highly unbelievable; that
according to P.W.1, when she was coming along with her husband in the cycle,
they were waylaid by the accused, and the occurrence has taken place; that she
has deposed before the Court that A-2 held the legs of her husband; but, in
Ex.P1 nowhere it is found so; that according to her, A-1 and A-2 came in a TVS
50; but, she has not averred the same in Ex.P1; that according to the
prosecution, immediately, after the occurrence, the cycle in which they
travelled, was also damaged; that how the damage had occasioned to the cycle she
has no explanation to offer; that apart from that, the conduct of P.W.1 that she
did not go nearby or take the body or come to the rescue and take him to the
hospital or inform to the Police Station and that too, the Inspector’s Office is
within 100 feet, would go to show that P.W.1 could not have been in the place of
occurrence at all; that P.W.1 would say in Ex.P1 that action must be taken not
only against these two accused, but also against others; that what is found in
Ex.P1 coupled with the evidence of P.W.1 in the cross-examination where she has
spoken that apart from these two accused, there are two other accused against
whom complaint was already given, would go to show that only after receiving the
information as to the death of her husband, she went over there; that yet
another circumstance in the instant case to shake the testimony of P.W.1 was
that though the prosecution claimed that the occurrence has taken place at about
8.00 P.M., and the case was registered at 8.30 P.M., the FIR has reached the
Judicial Magistrate by 1.00 A.M.; that it is pertinent to point out that the
Magistrate’s Court and residence is situated within a furlong from the Police
Station; that all would go to show that P.W.1 could not have seen the occurrence
at all; that under the circumstances, the lower Court should not have believed
the evidence of P.W.1 and should have acquitted the appellants, but not done so,
and hence, it has got to be considered by this Court.

6.In support of his contentions, the learned Senior Counsel relied on a
decision of the Apex Court reported in (2008) I MLJ (CRL) 381 (SC) (STATE OF
MAHARASHTRA V. RAJU BHASKAR POTPHODE
).

7.The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made.

8.It is not in controversy that the husband of P.W.1 was done to death in
an incident that took place on 30.8.2005. Following the inquest made by the
Investigator, the dead body was subjected to postmortem by P.W.6, the Doctor,
who has given opinion that the deceased died out of shock and haemorrhage due to
the multiple injuries sustained. The fact that he died out of homicidal
violence was never questioned by the appellant/accused at any stage of the
proceedings, and hence, without any impediment, it could be recorded so.

9.In order to substantiate the charges levelled against the accused, the
prosecution rested its case on the direct evidence by examining P.Ws.1, 2 and 5
as occurrence witnesses, out of whom, P.Ws.2 and 5 have turned hostile. Hence,
their evidence was not helpful to the prosecution. The only evidence available
was that of P.W.1. P.W.1 was the wife of the deceased. She was not an injured
witness. In the case on hand, the evidence of P.W.1 was thoroughly
uncorroborated and solitary. Since she happened to be closely related to the
deceased, her evidence has got to be tested with care and caution. If it is
tested, this Court is afraid whether it could accept her evidence for the
following reasons.

10.According to P.W.1, she was with her husband when the occurrence took
place. She has deposed before the Court that they were coming by a cycle; that
the accused were coming in a TVS 50; that they waylaid both of them, and her
husband in order to escape, was about to run; but, A-2 held his legs, and by
that, he facilitated A-1 to attack him with aruval. Ex.P1 was the earliest
document, wherein there was no reference either as to the TVS 50 in which the
accused came or no whisper about the act of A-2 that he caught hold of the legs
of the deceased. According to P.W.1, she was in the occurrence place for a
period of five minutes even after the accused left the place. If to be so, it
would be quite natural for the wife of the deceased to go nearby, touch the body
or cry; but, she has candidly admitted that she has not done anything. It is an
admitted fact that the Inspector’s Office is situated within 100 feet from the
place of occurrence. She has not gone for their help. She has not even gone to
the Police Station to give a complaint. But, she has gone over to her place and
informed to others. It remains to be stated that she gave a detailed report
running to pages, written by P.W.3.

11.Another important fact which goes to the root of the matter, is to
doubt the presence of P.W.1 at the time of occurrence. At the end of Ex.P1, the
report, she has categorically stated that action must be taken against the
appellants and others also. At the time of cross-examination, she has stated
that she has given a complaint regarding the incident, against four persons out
of whom two were the accused. She has specifically mentioned the names of four
persons there, and hence, it also casts a doubt whether Ex.P1 was one prepared
by her and given to the police.

12.Apart from the above, in the said transaction, the cycle of the
deceased was found damaged. But, she had no explanation to offer how the cycle
got the damages. Further, there were seven injuries found on the dead body.
According to her, A-1 cut her husband only on the wrist and the neck; but,
injuries are found in the ear also. Thus, she was unable to account for the
seven injuries. All would go to show that whether P.W.1 could have been present
at the place of occurrence.

13.Added strong circumstance in favour of the accused or against the
prosecution is that though the prosecution came forward to state that the case
was registered at about 8.30 P.M., the FIR has reached the Judicial Magistrate
at 1.00 A.M. after nearly about four hours. It is also an admitted position
that the Judicial Magistrate’s Court and residence are all situated nearby to
the Police Station concerned. This delay would also cast a doubt whether Ex.P1
could have come into existence as put forth by the prosecution.

14.In the instant case, the only solitary and uncorroborated testimony
available was that of P.W.1. In order to sustain a conviction, that evidence
must be cogent and trustworthy, and also care and caution must be exercised.
But, it is not free from doubt. With all these reasonable doubts that are
noticed, this Court is of the considered opinion that it would be highly unsafe
to sustain a conviction against the appellants. Under the circumstances, they
are entitled for acquittal giving benefit of doubt to them. Accordingly, the
judgment of conviction and sentence passed by the lower Court, is set aside, and
the appellants are acquitted of the charges levelled against them.

15.In the result, this criminal appeal is allowed. The bail bond executed
by A-2, shall stand terminated. The first appellant/A-1 is directed to be set
at liberty forthwith unless his presence is required in connection with any
other case. The fine amounts if any paid by them, will be refunded to them.

nsv/

To:

1.The Principal Sessions Judge
Virudhunagar District
at Srivilliputtur

2.The Inspector of Police
Sattur Town Police Station
Virudhunagar District
in Cr.No.442/2005

3.The Additional Public Prosecutor
Madurai Bench of Madras High Court

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