BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/01/2011 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN AND THE HONOURABLE MR.JUSTICE T.SUDHANTHIRAM Crl.A(MD)No.172 of 2000 1. Muthupandi 2. Murugan ... Appellants/A1&A2 Vs. State represented by the Inspector of Police, Sattur Police Station, Virudhunagar District. (Crime No.712 of 1998) ... Respondent/Complainant Prayer Criminal Appeal filed under Section 374 of Cr.P.C. to set aside the order and judgment passed in S.C.No.176 of 1999, dated 25.01.2000 on the file of the Principal Sessions Court, Virudhunagar at Srivilliputhur. !For Appellants ... Mr.Vadivel for Mr.T.Muruganantham ^For Respondent ... Mr.P.N.Pandidurai Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by
T.SUDHANTHIRAM,J.)
The appellants 1 and 2 are the accused 1 and 2 in S.C.No.176 of 1999 on
the file of the Principal Sessions Court, Virudhunagar District at
Srivilliputhur. The first appellant/first accused was convicted for the offence
under Section 302 I.P.C. and sentenced to undergo life imprisonment and to pay a
fine of Rs.1,500/- and in default to undergo 6 months simple imprisonment and
the second appellant/second accused was convicted for the offences under
Sections 341, 302 r/w. 34 I.P.C. and he was sentenced to pay a fine of Rs.500/-
and in default to undergo one week simple imprisonment for the offence under
Section 341 I.P.C. and he was also sentenced to undergo life imprisonment and to
pay a fine of Rs.1,500/- and in default to undergo six months simple
imprisonment for the offence under Section 302 r/w. 34 I.P.C. Challenging the
conviction and sentence, the appeal was preferred by the appellants.
2. It is now reported that the first accused/first appellant had died. The
Sub Inspector of Police, Sattur Taluk Police Station, has filed a report stating
that the first petitioner/first accused Muthupandi had died in the year 2005.
Hence, the appeal in respect of the first accused abates.
3. The case of the prosecution in brief is as follows:
P.W.1 is the wife of the deceased. They were residing in Sattur Village.
On 17.09.1998, at about 7.15 a.m., P.W.1 and the deceased were going to their
daughter’s house, who was residing at Amirpalayam and at that time, the deceased
was also carrying a water pot. When they were going on the Vellakarai road from
West to East, the accused 1 to 3 came to the scene of occurrence and due to
previous enmity, the second accused caught-hold the hands of the deceased and
the first accused attacked the deceased on his head with an aruval. Thereafter,
all the three accused had run away from the scene of occurrence. P.W.1 went to
the Sattur Police Station and gave a complaint against the accused, which was
marked as Ex.P.1. P.W.12, the Inspector of Police, on receiving the complaint at
9.00 a.m., registered a case in Crime No.712 of 1998 for the offence under
Section 302 I.P.C., and prepared a First Information Report – Ex.P.13.
Thereafter, P.W.12 went to the scene of occurrence and prepared a rough sketch –
Ex.P.14 and Observation Mahazar – Ex.P.15. Thereafter, he went to the hospital
and held inquest on the body of the deceased and recorded the statement of the
witnesses and prepared a report – Ex.P.16. He also gave a requisition for
conducting post-mortem. P.W.11, the doctor, on receiving the intimation, held
autopsy on the body of the deceased, on 18.09.1998 at about 10.00 a.m. He
noticed the following injuries in the body.
“1. A transversely oblique cut wound extending from the just lateral to
the left eye cutting the middle of the ear upto middle of the occipital region
measuring 26 cms x 8 cms x brain deep cutting underlying bones, dura and brain,
10 x 0.5 x 2.5 cms, with sourrounding extravasated blood clots.
2. An oblique cut injury on the back of left scapuala region measuring 8
cms x 1 cm x 2.5 cm cutting the underlying muscles and scapula.”
He also issued the post-mortem certificate – Ex.P.12. The Doctor has
opined that the deceased would appear to have died of shock and hemorrhage as a
result of external wound No.I with corresponding internal injuries sustained by
the deceased. P.W.12 arrested the first accused on 19.09.1998 at 8.00 a.m. and
recorded his confession statement (the admissible portion of the confession
statement – Ex.P.18) and recovered an aruval – M.O.1. On 11.10.1998, he arrested
the third accused and sent him to the judicial custody. The second accused had
surrendered before the Court. P.W.12 after completion of investigation, laid the
final report against all the three accused for the offences under Sections 341,
302 r/w. 34 I.P.C.
4. The prosecution examined P.Ws.1 to 12 and marked Exs.1 to 19 and
produced M.Os.1 to 7.
5. When the accused was questioned under Section 313 of the Code of
Criminal Procedure in respect of the incriminating materials appearing against
him through the evidence adduced by the prosecution, he has come forward with
the version of total denial.
6. The trial Court after analysing the evidence available on record,
acquitted the third accused and convicted and sentenced the accused 1 and 2
alone already stated above.
7. The learned counsel for the appellant submitted that except P.W.1, the
other witnesses did not speak about the occurrence and P.W.1 had admitted during
the cross-examination by the accused, that she was not present at the time of
occurrence and she was also treated as hostile witness by the prosecution. The
learned counsel for the appellant further submitted that there is no
incriminating material against the accused.
8. Per contra, the learned Additional Public Prosecutor submitted that
P.W.1, wife of the deceased had stated in her chief examination that the second
accused caught-hold of the deceased and the first accused attacked the deceased
on his head with an aruval and P.W.1 was not cross-examined on the date, when
her chief-examination was recorded and subsequently during the cross-examination
by the accused, she had resiled from what she had stated in the chief-
examination.
9. We have considered the submissions made on either side and perused the
records.
10. Except P.W.1, no other witnesses speaks about the occurrence. Of
course P.W.1 has stated in the chief-examination that the accused 1 to 3 came to
the scene of occurrence and the second accused/second appellant caught-hold of
the deceased and the first accused/first appellant attacked the deceased with an
aruval on his head. During the cross-examination by the accused, P.W.1 had
stated that she was not present at the scene of occurrence and she did not know
who attacked the deceased. She further stated that she did not know what was
written in the complaint – Ex.P.1. P.W.1 was treated as hostile and she was also
cross-examined by the prosecution. During the cross-examination by the
prosecution, she had stated that she had no reason for changing her version.
Though P.W.1 had given evidence against the accused during the chief-
examination, having changed her version during the cross-examination and having
disowned the complaint-Ex.P.1. We feel that it is not safe to convict the
accused, placing reliance on the evidence given by P.W.1 in the chief
examination.
11. In the result, the judgment of the trial Court, dated 25.01.2000, made
in S.C.No.176 of 1999, by the learned Principal Sessions Judge, Virudhunagar at
Srivilliputhur is set aside. Accordingly, this Criminal Appeal is allowed. The
appellant is acquitted of the charges. The bail bonds executed, if any, by the
appellant stand canceled. Fine amount paid, if any, is directed to be refunded
to the appellant.
akv
To
1. The Inspector of Police,
Sattur Police Station,
Virudhunagar District.
2. The Principal Sessions Court,
Virudhunagar,
Srivilliputhur.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.