BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20/02/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE G.RAJASURIA CRIMINAL APPEAL NO.319 OF 2004 1.Ponnu alias Peria Pachhai Perumal 2.Ganpathi 3.Chitravelu 4.Muthulakshmi .. Appellants Accused Nos.1 to 4 Vs. The State represented by The Inspector of Police, Ottapidaram Police Station, Tuticorin District. .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the judgment dated 16.02.2004 made in S.C.No.242 of 2000 on the file of the learned Additional Sessions Judge / Fast Track Court No.I, Tuticorin. !For Appellants ... Mr.C.Ramachandran Amicus Curiae ^For Respondent ... Mr.N.Senthurpandian, Additional Public Prosecutor :JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal has arisen from the judgment of the Additional Sessions Judge
/ Fast Track Court No.I, Tuticorin made in S.C.No.242 of 2000 whereby the
appellants/accused Nos.1 to 4 stood charged, tried and found guilty as follows:
Charges:
A-2 and A-3 – S.302 IPC.
A-1 – S.302 r/w S.34 IPC
A-2 to A-4 – S.302 IPC
A-1 – S.302 r/w S.34 IPC
A.2 and A.3 were found guilty under Section 302 I.P.C (2 counts) and awarded
life imprisonment for each counts along with a fine of Rs.1,000/- and a default
sentence of six months imprisonment. A.1 was found guilty under Section 302
I.P.C read with Section 34 I.P.C and awarded life imprisonment with a fine of
Rs.500/- and a default sentence of six months imprisonment. A.4 was found
guilty under Section 302 I.P.C and awarded life imprisonment with a fine of
Rs.500/- and a default sentence of six months imprisonment and the sentences in
respect of A-2 and A-3 were ordered to run concurrently.
2. The short facts necessary for the disposal of this appeal can be stated
thus:
(a) P.W.1 is a native of Melameenakshipuram within the jurisdiction of the
respondent police. She was living with her sons Poomurugan, Periamurugan and
her daughter Poomari. The said Poomari was given in marriage to one Pachhai
Perumal of the said village. The said Poomari had one daughter, namely
Sakhundala, aged ten years, and one son, namely Sathish Raja, aged six years.
The said Poomari was working at the Noon Meal Scheme of Melameenakshipuram.
P.W.1’s son Murugan and Muthulakshmi A.4 herein, the daughter of one
Petchimuthu, had love affair and when it came to the knowledge of the village,
the marriage was solemnised on the advice of the villagers on 05.02.1999 and
there was a strained relationship then and there. Muthulakshmi came back to her
parental home and she was living there. A complaint was given in All Women
Police Station, Kovilpatti and that it was treated as a petition No.39 of 1999
dated 17.02.1999. Both the said Muthulakshmi A.4 and her husband were called
and enquired into the matter and advised to live together and they lived
together for sometime and then, she came back to her parental home.
(b) On 03.08.1999, all the accused went to the respondent police in
respect of the previous petition No.39 of 1999, Ex.P.22. At that time, the
Inspector of Police was not available and P.W.15, the Head Constable asked them
to come on the next day. Sometime later, P.W.1 along with her daughter went
there and they were also informed the same. At that time, A.1 to A.3 informed
the second deceased Poomari that she was responsible for the disturbance in the
matrimony of their sister Muthulakshmi and that they would do away her and her
brother also. On 04.08.1999 i.e., on the date of occurrence, P.W.1 and P.W.2
proceeded to Keelameenakshipuram to purchase idli from a hotel. At that time,
A.3 armed with an aruval and A.2 armed with a knife and A.1 accompanied them,
came over there and attacked the first deceased Murugan indiscriminately. This
was witnessed by P.W.1 and P.W.2 and immediately after the occurrence, the
accused fled away from the place of occurrence. P.W.1 immediately rushed to her
house and asked her mother about Poomari and she was informed that Poomari went
over to nearby well and she proceeded towards the well at about 09.00 a.m., and
she found A.1 to A.4 there. A.3 armed with an aruval and A.2 armed with a knife,
attacked the second deceased Poomari and A.3 handed over the aruval to A.4 and
asked her to attack Poomari and A.3 got it back and further attacked Poomari.
A.2 stabbed Poomari with the knife. A.1 instigated them to do so. The whole
occurrence was witnessed by P.W.3, a child aged 10 years, who was also standing
nearby and that immediately, after the second occurrence, all the accused fled
away from the place of occurrence.
(c) P.W.1 along with P.W.2 proceeded to Ottapidaram Police Station and
gave a complaint, Ex.P.1, on the strength of which, a case came to be registered
in Cr.No.72 of 1999 and the F.I.R which was marked as Ex.P.26, was despatched to
the Court immediately. P.W.21, the Inspector of Police took up the
investigation and proceeded to both the scene of occurrences and prepared
observation mahazars, Exs.P.2 and P.3 in the presence of witnesses and through
P.W.15, photographs were also taken. Further, he conducted inquest on the dead
bodies in the presence of witnesses and Panchayatars and prepared Ex.P.28, the
inquest report of the first deceased Murugan, and Ex.P.31, the inquest report of
the second deceased Poomari. Further, both the dead bodies were sent with the
respective requisitions for post-mortem to the Government Hospital and P.W.12,
the Doctor attached to the Hospital, conducted autopsy on the dead body of the
first deceased Murugan and gave post-mortem certificate Ex.P.14, where the
Doctor opined that the death would appear to have caused due to shock and
haemorrhage due to the injuries sustained and also conducted the post-mortem on
the dead body of the second deceased and gave post-mortem certificate Ex.P.16,
where the Doctor opined that the death would appear to have caused due to shock
and haemorrhage due to the injuries sustained.
(d) On 05.08.1999, the Investigating Officer arrested A.2 to A.4 and A.2
made confessional statement, the admissible portion of which was marked as
Ex.P.6. Pursuant to the confessional statement, he produced the weapon of
crimes, which were recovered in the presence of the witnesses under a cover of
mahazar. The material objects recovered from the place of occurrence from the
the dead bodies as well as the material objects recovered from the accused,
including the weapons of the crime, were sent for chemical analysis by the
Investigating Officer through the Court concerned to the Forensic Science
Department with the respective requisitions, which resulted in the Chemical
analysis report Ex.P.19 as well as the Serologist report Ex.P.20 respectively.
On completion of investigation, final report was filed by the Investigating
Officer before the committal court.
3. The case was committed to Court of Session and necessary charges were
framed. In order to substantiate the charges levelled against the accused, the
prosecution has examined 21 witnesses and relied on 31 exhibits along with 27
M.Os. After the evidence on the side of prosecution was over, the Court
questioned the accused under Section 313 Cr.P.C. as to the incriminating
circumstances found in the evidence of prosecution witnesses. The accused
denied them as false. On the side of the defence, only one witness as D.W.1 was
examined and through D.W.1, Ex.D.1 was marked.
4. After completion of trial, the trial court heard the arguments of both
sides, perused the materials available, found the accused guilty as per the
charges and awarded punishment as referred to above. Hence, this appeal at the
instance of the appellants/accused Nos.1 to 4.
5. Advancing his arguments on behalf of the appellants, the learned
counsel would submit that in the instant case, according to the prosecution,
there were two occurrences. First of all, the prosecution had no immediate
motive for the occurrence at all and actually, A.4 was given in marriage to the
first deceased and there were disturbances in the matrimony and there was a
conciliation and they lived together for some time. Apart from that, either at
the time of the occurrence or on the previous day, there was no immediate motive
for double murder. Insofar as the first occurrence is concerned, P.W.1 and
P.W.2 were the eyewitnesses. According to the prosecution, the occurrence took
place at about 08.30 a.m., that too in a public place near a hotel. If to be
so, number of independent witnesses could have been examined as witnesses, but
no one of the independent witnesses was examined. This would indicate that
P.W.1 and P.W.2, who were not only the close relatives of both the deceased, but
also interested, have come forward to give evidence against the accused, which
would indicate that the prosecution has planted these witnesses to speak about
the occurrences, which they have not seen at all. Thus, the non-examination of
the independent witnesses would be fatal to the prosecution case. Added further
the learned counsel that in both the occurrences so far as A.1 was concerned,
neither he was shown as armed nor he has participated in the crime and no overt
act was attributed against him and hence, his participation in the offence was
thoroughly nil. The first part of the occurrence is highly doubtful whether
Ex.P.1, the complaint could have come into existence as put forth by the
prosecution. According to P.W.1, on the date of occurrence, she was not
conscious and she did not know whether the accused were armed with aruval and
knife, etc., and thus, she could not have been the Author of the F.I.R. Apart
from that, in the instant case, according to P.W.20, the Sub Inspector of
Police, the F.I.R was actually written and recorded by the Head Constable. But,
from the F.I.R, it could be seen that it was actually recorded by the Sub
Inspector of Police and hence, it casts a doubt as to who has prepared the same.
6. The learned Counsel for the appellants further submitted that insofar
as the second occurrence was concerned, according to the prosecution, the
witnesses available were P.Ws.1 to 3. Though P.Ws.1 and 2 have claimed that
they have witnessed the occurrence, P.W.21, the Inspector of Police has
categorically deposed that both these P.W.1 and P.W.2 at the time of
investigation have not spoken about the fact that they have witnessed the
occurrence and it is quite clear that P.W.1 and P.W.2 would not have seen the
occurrence. If to be so, the only witness for prosecution was P.W.3, a 10 year
old child. The date of occurrence, namely 04.08.1999, was a working day for the
school where P.W.3 was studying. According to D.W.1, she was attending the
school and the attendance register, Ex.D.1, would indicate her presence in the
school at 09.00 a.m., and thus, she would have started to School earlier and
hence, she could not have seen the occurrence at all.
7. Insofar as the second part of the occurrence was concerned in which the
said Poomari was killed, there was absolutely no evidence at all and the
prosecution had no evidence in that regard. Added further the learned Counsel
that in the instant case, the case of the prosecution that A.4 participated in
the second crime was highly artificial. According to the prosecution, it was
A.3, who wielded aruval on the deceased Poomari and after that, he handed over
the same to A.4, his sister and asked her to attack the second deceased Poomari
and after she gave cut, again A.3 got it back and inflicted cuts on the second
deceased. Thus, it would be quite clear that A.4 could not have participated in
the crime at all. In order to strengthen or to make it believe affair, A.4 has
been implicated in the instant case. In the absence of the evidence of P.W.3,
there is no evidence at all and under such circumstances, the prosecution has
not proved its case beyond all reasonable doubts. All the facts now brought to
the notice of the court and all these aspects of the matter were not taken into
account by the lower court and they have escaped from the vision of the lower
court and hence, the accused/appellants are entitled for acquittal in the hands
of this court.
8. Heard the learned Additional Public Prosecutor on the above
contentions.
9. The Court has paid its anxious consideration on the submissions made.
10. It is a case of double murder, in which the first deceased namely
Murugan was killed at about 08.30 a.m. on 04.08.1999 before a hotel at
Keelameenakshipuram, while the second deceased namely Poomari was killed at
about 09.00 a.m., on the same day near a well situated at Melameenakshipuram.
The prosecution came forward to state that both the persons were killed due to
homicidal violence and in order to substantiate the same, the prosecution
examined not only the eyewitnesses, but also relied on the medical evidence
through P.W.12, the Doctor, who conducted autopsy through whom the post-mortem
certificates were marked and apart from that, the fact that both the deceased
died due to homicidal violence was never questioned by the appellants at any
stage of proceedings and hence, it has got to be recorded so.
11. In order to substantiate the first occurrence in which the first
deceased was murdered, the prosecution has examined P.W.1 and P.W.2. It could be
seen that there are sufficient materials pointing to the motive for the
occurrence. All the accused Nos.1 to 3 are the brothers of A.4 and A.4 was
given in marriage to the first deceased. There was a disturbance in the
matrimony and there was also a conciliation. Even then, they could not live
together and A.4 was living in her parental home and hence, her brothers were
aggrieved over the same. Even on previous day of the occurrence, they went to
the police station and according to the evidence of P.W.1, there was a challenge
made by all the three accused to the second deceased that they would do away her
and also her brother. Thus, it would be quite clear that the accused persons
were on inimical terms against P.Ws. In the instant case, P.Ws.1 and 2 were the
eyewitnesses to the first occurrence. According to them, they proceeded to the
hotel, situated at Keelameenakshipuram to purchase idli, where they witnessed
the first occurrence, in which A.1 to A.3 came over there and A.2 armed with
knife and A.3 armed with aruval, attacked the first deceased indiscriminately
and caused his death. It is true, they were close relatives of the deceased,
but on that ground alone, their evidence cannot be rejected. The Court is
mindful of the caution made by the Apex Court that the evidence of the relatives
of the deceased cannot be discarded on that ground, but it must be scrutinised
carefully. Even after exercising the test of careful scrutiny, their evidence
has inspired the confidence of the Court. The comment made by the learned
counsel for the appellants that the independent witnesses have not been examined
cannot be accepted for the reason that it is a case where P.W.5 and P.W.6 have
been examined, but they have turned hostile. Hence the comment made by the
learned counsel for the appellants that no independent witness was examined
cannot be warranted. It is a case where independent witnesses have been
examined, but they have turned hostile. P.Ws.1 and 2, though relatives of the
deceased, they have given a graphic narration of the entire incident and their
evidence has been marshalled, considered and accepted by the trial court and
rightly too.
12. At this juncture, it is to be pointed out that as per the prosecution
case, A.1 was neither armed nor attributed any overt act and thus, he had no
role to play and nothing has been whispered that he has shared any common
intention. Now, what are all stated by the prosecution was that it was he, who
hold the legs of the first deceased and twisted the same and he was roped in the
murder case. Insofar as the first occurrence is concerned, the Court is able to
see that the second accused armed with knife and the third accused armed with
aruval, attacked the first deceased indiscriminately and caused instantaneous
death of the first deceased. This part of the prosecution case through the
ocular testimony was also fully corroborated by the medical evidence. Thus, in
respect of the first occurrence, the prosecution has proved that murder was
committed by A.2 and A.3.
13. Insofar as the second occurrence was concerned, the second deceased
Poomari was killed at about 09.00 a.m. on the same day, in which, according to
the prosecution, A.1 to A.4 have participated. Even in that occurrence also,
A.1 was neither armed nor attributed any overt act and it was A.2 to A.4 who
have attacked the deceased Poomari. Insofar as the second occurrence was
concerned, the evidence of P.W.1 to P.W.3 were available. It is highly doubtful
whether P.W.1 and P.W.2 could have seen the occurrence at all. The Investigator
who was examined as P.W.21, has categorically deposed that P.W.1 and P.W.2, at
the time of interrogation under Section 161 Cr.P.C, have not stated that they
have witnessed the occurrence and thus, it would be quite clear that P.Ws.1 and
2 could not have seen the occurrence at all.
14. But, the prosecution had its advantage of the evidence of P.W.3. It
is true, P.W.3 was only 10 years old and a school going child. She, with
sufficient maturity, has given evidence before the court. She has clearly
narrated the entire episode by stating that all these accused came over there
and A.2 was armed with knife and A.3 was armed with aruval and A.4 was also
present there. They attacked the deceased Poomari and it was A.3, who handed
over the aruval to his sister A.4 and asked her to attack the deceased Poomari
and A.4 attacked with that aruval and A.3 got it back and further attacked the
deceased Poomari. Thus, P.W.3 has given a clear narration about the occurrence,
in which A.4 has also participated. The contention of the learned Counsel for
the appellants that the role of A.4, as projected by the prosecution, was not
natural, cannot be accepted for the simple reason that she was an aggrieved
party and she could not live with her husband and she thought that Poomari was
responsible for the same. Under these circumstances, she, in order to take a
revenge, has acted so. The contention of the learned Counsel for the appellants
that the evidence of P.W.3 cannot be accepted, has got to be stated only for the
purpose of rejection.
15. It is true that D.W.1 has been examined and Ex.D.1 attendance
register, was marked to the effect that P.W.3 attended the school on 04.08.1999,
the date of occurrence, and the school also commenced functioning by 09.00 a.m.,
which was the time of the second occurrence in which Poomari was murdered. It
is pertinent to point out that even on 05.08.1999, when the dead bodies were
cremated, the entries in respect of P.W.3 were made in Ex.D.1, the attendance
register, which would be indicative of the fact that even on the date when the
child did not go to School, there was an entry of her presence and this would be
indicative of the fact that the attendance register was given entry of her
presence automatically. D.W.1 has stated in his evidence that from June 1999 to
December 1999, there were no absentees at in all these months. Thus, this would
be indicative of the fact that the entries of the presence of the child were
made automatically whether they were present or not. Under such circumstances,
the Court at no stretch of imagination can rely on either the evidence of D.W.1
or the document Ex.D.1. While the witness, namely P.W.3, before the court has
categorically spoken about her presence and has also given a graphic narration
of the entire incident, the Court without any hesitation has to believe such an
evidence, since it has inspired the confidence of the Court. Thus, the
prosecution has proved that A.2 to A.4 have participated in the crime. Insofar
as in the first occurrence was concerned, A.2 and A.3 have acted and shared
common intention and murdered the first deceased, while in the second
occurrence, A.2 to A.4 have shared common intention and caused the death of the
second deceased. But, in both the occurrences, A.1 was a passive spectator and
there is nothing to indicate that he shared the common intention of causing
murder of either the first deceased or the second deceased. Under such
circumstances, in the absence of any overt act, A.1 cannot be found guilty as
put forth by the prosecution and he is entitled for acquittal of the charges
levelled against him.
16. In the result, this criminal appeal is partly allowed in respect of
A.1. The conviction and sentence imposed on the accused No.1 by the trial court
are set aside and the first accused alone is acquitted of the charges levelled
against him. A.1 is directed to be set at liberty forthwith unless his presence
is required in connection with any other case. The fine amount, if any paid by
A.1, is ordered to be refunded to him.
17.The criminal appeal is dismissed in respect of A.2 to A.4 and the
convictions and sentences imposed by the trial court as against A.2 to A.4 are
confirmed.
18. Mr.C.Ramachandran, Advocate, who was appointed as Amicus Curiae
counsel to argue the appeal on behalf of the appellants, is entitled to get
remuneration from the Legal Aid, Madurai.
To
1.The Additional Sessions Judge /
Fast Track Court No.I,
Tuticorin.
2.The Inspector of Police,
Ottapidaram Police Station,
Tuticorin District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.