{"id":126803,"date":"2002-07-29T00:00:00","date_gmt":"2002-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thangavelu-vs-state-of-tamil-nadu-on-29-july-2002"},"modified":"2017-05-20T12:16:02","modified_gmt":"2017-05-20T06:46:02","slug":"thangavelu-vs-state-of-tamil-nadu-on-29-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thangavelu-vs-state-of-tamil-nadu-on-29-july-2002","title":{"rendered":"Thangavelu vs State Of Tamil Nadu on 29 July, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Thangavelu vs State Of Tamil Nadu on 29 July, 2002<\/div>\n
Author: S Hegde<\/div>\n
Bench: N Santosh Hegde, D M Dharmadhikari.<\/div>\n
           CASE NO.:\nAppeal (crl.) 104  of  2002\n\n\n\nPETITIONER:\nTHANGAVELU\n\n\tVs.\n\nRESPONDENT:\nSTATE OF TAMIL NADU\n\nDATE OF JUDGMENT:\t29\/07\/2002\n\nBENCH:\nN Santosh Hegde & D M Dharmadhikari.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SANTOSH HEGDE, J.\n<\/p>\n
\tThe appellant abovenamed was chargesheeted by Erode
\nTaluk Police Station for an offence under Section 302 IPC (on
\ntwo counts) and Section 506 IPC before the Judicial Magistrate,
\nErode, for having committed the murders of Arisikarar alias
\nNachimuthu (D-1) and Beedikarar alias Nachimuthu Gounder
\n(D-2) due to previous enmity and for further having threatened
\ncertain others who tried to intervene in the incident which led to
\nthe death of D-1 and D-2. Learned Sessions Judge, Periyar
\nDistrict, after trial, came to the conclusion that the prosecution
\nhas established that the appellant had committed the said
\nmurders, hence, found him guilty of offence punishable under
\nSection 302 on two counts and convicted and sentenced him to
\nlife imprisonment on each of the said count and further held
\nhim guilty for an offence punishable under Section 506 IPC and
\nconvicted and sentenced him to undergo RI for a period of one
\nyear. He directed that all the sentences should run concurrently.\n<\/p>\n
\tThe appeal of the appellant before the High Court of
\nJudicature at Madras being unsuccessful, the appellant is before
\nus in this criminal appeal. The prosecution case, stated briefly,
\nis as follows :\n<\/p>\n
\tThe family of the accused was originally staying in a
\nvillage called Velayuthampalayam and moved about 25 years
\nbefore the date of the incident from the said village to
\nThottanichatram. His family members were agricultural
\nlabourers. It is stated that the accused had 2 brothers and 2
\nsisters out of which Saraswathi also known as Sarasu, the elder
\nsister, was doing the work of agricultural labourer. About 15
\nyears prior to the incident in question, one of the sons of
\ndeceased D-1, namely, Muthusamy and another friend of his
\nalso known as Muthusamy @ Kidakarar son of Chinnappa
\nGounder had raped the said Sarasu. In regard to this incident, a
\nPanchayat was called and there was a suggestion that either of
\nthe persons involved in the said rape incident should marry the
\nsaid Sarasu which was not agreed to by D-1 and the latter had
\nthreatened the family of the appellant to banish the said Sarasu
\nfrom the village because of her bad character. The appellant’s
\nfamily being helpless, had to send her away to Madras where
\nshe lived for sometime and about 4 years before the date of the
\nincident, she had come back to the village along with another
\nperson whom she claimed to have married and on coming to
\nknow of the said incident of rape, her husband is supposed to
\nhave taken her away to a place called Karaikudi. The further
\ncase of the prosecution is that thereafter about 2 years prior to
\nthe date of the incident, the said Saraswati again came back to
\nthe village alone and when D-1 came to know of the same, he
\ncalled the appellant and warned him that if Sarasu has allowed
\nto stay in the village, he would arrange for a boycott of the
\nfamily by other villagers, therefore, he directed the appellant to
\ntake Sarasu away from the village because of which Sarasu had
\nto go away. It is the case of the prosecution that since then the
\nappellant entertained a grudge against D-1 and was off and on
\ntelling people that because of the deceased persons, his family
\nhad been ruined. With this incident in the background,
\naccording to the prosecution, the appellant wanted to take
\nvengeance upon the deceased persons, hence, on 16.12.1990 at
\nabout 1.30 p.m. when the two deceased persons were working
\non a piece of land near about their house, he attacked them with
\na sickle, consequent upon which both the deceased died on the
\nspot. It is stated that this incident was witnessed by PW-1 who
\nis son of D-1, PW-2, Palanisamy, son of D-2, one Thulasi
\nAmmal, wife of PW-2 and Rengasamy son of D-2. The further
\ncase of the prosecution is that the appellant after the attack took
\nto his heels with the blood stained sickle in his hand. It is also
\nstated that as he was running, he met PW-3, Chinnappa
\nGounder and one Papayee @ Periyammal wife of D-1. It is the
\ncase of the prosecution that the accused volunteered an extra-
\njudicial confession of his assault on the deceased to these two
\npersons, namely, PW-3 and Papayee and thereafter he ran
\nfurther away. The prosecution states that after seeing his father
\nand uncle dead, PW-1 went to the residence of PW-11 V.K.
\nSubramaniam who was the Village Administrative Officer
\n(VAO) and narrated the incident to him who recorded the
\nstatement of PW-1 as per Ex. P-1 and read the same over to
\nPW-1 and obtained his signatures. Thereafter, PW-11 is alleged
\nto have inspected the place of the incident and confirmed the
\nstatement of PW-1 to be correct and went to Erode Taluk Police
\nStation along with PW-1 and submitted Ex. P-1 at about 4 p.m.
\nto the Sub-Inspector (PW-13) along with a special report of
\nPW-11. PW-13, the Sub-Inspector then prepared an FIR in the
\nprinted form in Ex.P-17 and sent the same to the jurisdictional
\nMagistrate and other higher officials by which time PW-14, the
\nInspector of Police at the said Police Station came to the Station
\nand took over the investigation. It is stated that PW-14 along
\nwith his other staff proceeded to the place of the incident.  PW-
\n1 and PW-11 which is about 13 miles away from the Police
\nStation. On reaching the village, PW-14 conducted the inquest
\nand recorded the statement of PWs.1 and 2 and some others. He
\nseized some blood stained articles, sent some of them to the
\nChemical Examiner and arranged for the bodies of the deceased
\nto be sent for post mortem. PW-5, the doctor who conducted the
\npost mortem examination found 3 injuries on the body of D-1
\nout of which injury No.3 had almost severed the neck of the
\ndeceased and was hanging by the front skin of the neck. He
\nfound another cut injury on the left hand of the deceased. On
\nthe body of D-2 the doctor found a cut injury on the nape of the
\nneck extending till below the jaw bone up to the place called
\nangle. The said injury had cut the head which was hanging from
\nthe jaw-bone and the skin on that part. The doctor opined that
\nthe death was caused due to shock and bleeding caused by the
\nsaid injuries on the bodies of the deceased. In the examination
\nin chief the doctor had opined that the death of the deceased
\nmight have been caused within a period of 16-24 hours before
\nthe post mortem. The post mortem report of the doctor was
\nmarked as Ex. P-4. It is also stated by the prosecution that on
\n17.12.1990 the appellant went to the village Mettukkadai and
\nmet the VAO of that village by name Chinnasamy at about 8
\na.m. and told him that he had committed the murder of the
\ndeceased persons at their village and since he apprehended that
\nif he went to the Police by himself, he would be tortured. He
\nrequested PW-12 to take him to the Police Station and hand him
\nover. According to this witness he made a lengthy statement
\nwhich was taken down by him in writing and he had obtained
\nthe signature of the accused on the same. This extra-judicial
\nconfession was marked as Ex. P-14, subject to objection.
\nDuring the course of investigation it is alleged that on a
\nstatement made by the appellant MO-1 the sickle was recovered
\nalong with certain blood stained clothes of the appellant.
\n\t  Mr. N. Natarajan, learned senior counsel for the
\nappellant, contended that the entire prosecution case is totally
\nunbelievable. He pointed out that the investigation conducted
\nby PW-14 does not inspire any confidence whatsoever and
\nthere is very serious doubt as to the time and place of the
\noccurrence of the incident as also to the presence of the eye-
\nwitnesses. He pointed out from the evidence of PW-16, IO, that
\nwhen he got to read the complaint of PW-1 he was not sure of
\nthe facts narrated in the said complaint. Therefore, even though
\nthe name of the accused was mentioned in the complaint, he
\nhad decided to investigate to ascertain the real culprit by
\ninquiring with the eye witnesses himself which according to the
\nlearned counsel, this itself shows even PW-16 was doubtful
\nabout Ex.P.1. He also contended that from the evidence of the
\ndoctor in the cross-examination, it is clear that the death in
\nquestion had occurred about 39 hours before the post mortem
\nwhich would take the time of death sometime in the
\nevening\/night of 15.12.1990 which if it is correct would entirely
\ndemolish the prosecution case. He also submitted that non-
\nexamination of the independent witnesses as also other eye-
\nwitnesses who were the members of the family of the deceased,
\ncreates considerable doubt on the prosecution case. He pointed
\nout that PW-1 was not residing with D-1 and was staying
\nindependently with his family about one and a half kilometers
\naway from the house of D-1 therefore his presence at the time
\nof the incident is also doubtful. From the contents of Ex. P-1
\nthe complaint and the evidence of PW-1 as well as the alleged
\nextra judicial confession made as per Ex. P-14, he pointed out
\ngreat similarity in them as to the motive, nature of attack etc.
\nwhich also throws considerable doubt on the prosecution case.
\nHe also pointed out the discrepancy between the oral evidence
\nof the two eye witnesses and the medical evidence. From this
\nhe concluded that the prosecution case cannot be accepted and
\nthe courts below have very lightly brushed aside the various
\ndiscrepancies, omissions and glaring infirmities while coming
\nto the conclusion that the appellant was guilty of the offence.
\n\t  Mr. T.L.V. Iyer, learned senior counsel appearing for the
\nState, countered the argument of the learned counsel for the
\nappellant by stating that the discrepancies and omissions
\npointed out by the learned counsel are of not such gravity that it
\nwould vitiate the prosecution case. He contended that the courts
\nbelow have correctly assessed the prosecution case and
\neschewed such evidence as was not reliable and have relied
\nupon only plausible evidence and there being a finding of 2
\ncourts concurrently, this is not a case in which the court should
\ninterfere on re-appreciation of the evidence.\n<\/p>\n
\tWe have heard learned counsel and carefully looked into
\nthe material on record. From the evidence of PW-5, the doctor,
\nwe find that there is a possibility that the incident in question
\nmight have occurred about 39 hours prior to the post mortem.
\nThough in the examination in chief, PW-5 has stated that the
\ntime between the death and post mortem could be 16 to 24
\nhours which fits in with the prosecution case, in the cross
\nexamination he has very clearly stated that in this case death
\nwould have been caused about 39 hours before the post mortem
\nwhich would be sometime after 5.30 p.m. on 15.12.1990. This
\nthe doctor has stated by taking into consideration the time and
\nmonth of the incident as also the time required for the setting of
\nrigor mortis and passing off of the same. According to the
\ndoctor, in the month of December in a place like Erode the rigor
\nmortis may set in after about 2 to 3 hours after the death. He has
\nstated that for the rigor mortis to reach from the leg to head, it
\nwould take 12 hours and the same would remain in existence
\nfor about another 12 hours. Thereafter, it would gradually
\ndiminish in the reverse direction i.e. from head to leg taking
\nabout another 12 hours and on this basis when he examined the
\nbody of the deceased, he found the rigor mortis had reversed
\nalmost to the end of the legs. By this process he came to the
\nconclusion that the death in question must have occurred about
\n39 hours before post mortem. Though the prosecution has re-
\nexamined this witness on other points, not a single question is
\nput to this witness in regard to this part of his evidence. Since
\nthere is no cross examination on this point and there being no
\nother material to hold that the evidence of the doctor is either
\nnot scientific or contrary to known medical information, we
\nhave to conclude that there is a strong possibility that the death
\nof D-1 and D-2 could have occurred much prior to 1.30 p.m. on
\n16.12.1990. If this doubt of ours is reasonable then the
\nprosecution case should fall to the ground straightaway. But in
\nview of the fact that the two courts below have thought it fit to
\nrely on the evidence of eye witnesses and other circumstantial
\nevidence, and the doctor’s evidence is only a probability, we
\nwill consider other materials independently of the evidence of
\nthe doctor. It is an admitted fact that PW-1 stays a few
\nkilometers away from the village where D-1 was residing. D-2
\nwas D-1’s brother and was residing in a different house
\nopposite to that of D-1 along with PW-2, his wife and elder son
\nRengasamy. On the date of the incident it is stated that PW-1
\ncame to the house of his father D-1 and having found the house
\nlocked he went to the house of D-2 where he found PW-2, his
\nwife and the other son Rengasamy sitting. On being enquired
\nabout D-1, he was told by these 3 persons that both his father
\nand their father had gone near the cattle-shed, therefore, even
\nthough he had no specific work as such with his father instead
\nof spending time with PW-2 and others, he went to meet his
\nfather near the cattle-shed. According to this witness, when he
\nwent near the place of the incident, he saw the accused first cut
\nhis father’s head at the back of his neck forcibly with a sickle.
\nThough he shouted at the appellant not to cut, the appellant
\nproceeded to inflict 2 cuts on D-2 on the back side of his neck.
\nAt the same time he threatened this witness not to go near him
\nor else he would cut him also. Thereafter it is stated by this
\nwitness that he again cut his father D-1 in the neck. He stated
\nthat he, his cousin Palanisamy, PW-2 and non-examined
\nwitness Rengasamy then chased the appellant but he fled from
\nthe scene. Thereafter when he came back to the spot of the
\nincident, he found both his father and uncle dead. If we
\nexamine this evidence of PW-1 along with the evidence of PW-
\n5, the doctor, we find from the first blow of the sickle by the
\nappellant the head of D-1 had almost totally severed and the
\nsame was hanging by the skin of the neck on the front side. The
\ndoctor has graphically explained this injury which shows that
\nimmediately after suffering the injury, D-1 must have died. But
\nthe evidence of PW-1 is that after he dealt the first blow to D-1
\non his neck, he dealt 2 other blows also to D-2 severing his
\nhead almost from the body and then again he assaulted D-1 on
\nthe neck. If PW-1’s evidence is compared with the medical
\nevidence then we notice that this witness does not speak about
\nthe injury to the hand. He also says that after the chase of the
\nappellant he came back and saw the dead body of D-1 and
\nnotice the injury on his hand and chest but nowhere in his
\nevidence he has stated that he had seen this part of the attack on
\nhis father. Thus, as contended by the learned counsel  for the
\nappellant we do see this discrepancy in the evidence of PW-1
\n(which cannot be lightly brushed aside as contended by the
\nlearned counsel for the State). If we now examine the evidence
\nof PW-2 in this regard we notice that after PW-1 came to the
\nhouse and enquired about the whereabouts of his father and
\nwhen they told him that he was near the cattle-shed, PW-2 says
\nthat he, his wife and his brother followed PW-1 to the place
\nwhere their respective fathers were. They have not given any
\nreason whatsoever why they chose to go to the said place while
\nall along they were sitting in their house. Then PW-2 says that
\nhe saw the appellant assault D-1 with a sickle on the neck. He
\nof course corroborates the evidence of PW-1 by saying that
\nafter the first attack on D-1, the appellant attacked D-2 twice on
\nhis neck and his father D-2 fell down on the spot. He also says
\nthat the appellant thereafter dealt the second blow on the neck.
\nWhile like PW-1 he also does not speak about the attack on the
\nchest and hand of D-1, therefore, his evidence also suffers from
\nthe same lacuna as that of PW-1. The rest of the evidence of
\nPW-2 is almost in verbatim the same as that of PW-1. If we
\nexamine the evidence of these two witnesses in the background
\nof the fact that there is some doubt as to the time of death of D-
\n1 and D-2 as spoken to by the doctor, PW-5 coupled with the
\nfact that the incident in question had occurred on a mid-day at a
\nplace where there were nearly 50 houses and none of those
\npersons are supposed to have seen the incident, creates doubt in
\nour minds as to the prosecution case. Here we may notice that
\nany independent eye-witness cited by the prosecution PW-6 has
\nnot supported the prosecution case. This witness being the sister
\nof the VAO, PW-11, who had written Ex. P-1 cannot be
\npresumed in any manner, as having been won over by the
\naccused nor is there any suggestion to that effect. It is also to be
\nnoted at this stage that for reasons not explained, the
\nprosecution has failed to examine the other two eye-witnesses
\nviz., Rengasamy s\/o D-2 and Thulasi Ammal, wife of PW-2.
\nThe defence has pointedly suggested that these witnesses have
\nnot been examined because of property dispute in the family
\nwhich is suggested as one of the possibilities for the murders of
\nD-1 and D-2. There is also material on record to show that the
\nland in which the deceased were digging was not their land and
\nthe interference by the deceased with the possession of the land
\nwas not liked by others who had an interest in the land. If that
\nbe so, there were others who also entertained animosity with the
\ndeceased apart from the appellant. In these circumstances,  we
\nfind it difficult to rely on the testimony of these two interested
\neye witnesses. In our opinion there is sufficient justification for
\nthe learned counsel for the appellant to contend that the
\nprosecution having failed to examine all the eye witnesses in
\nthese facts and circumstances of the case, reliance can hardly be
\nplaced on the evidence of PWs.1 and 2 to convict the appellant.\n<\/p>\n
\tIn this context it may be necessary to note another fact
\nfrom the evidence of PW-5 which reads thus : “From the nature
\nof the injuries caused to Nachimutthu alias Rice man and
\nNachimutthu alias Beediman, we can say that more than one
\nperson more than one-weapon could have been used.” This
\nevidence of the doctor which again is not challenged coupled
\nwith the possibility of the incident having taken place as
\nsuggested by the doctor and the discrepancies in the evidence of
\nPWs.1 and 2 make us hesitant to rely on the prosecution case.\n<\/p>\n
\t  At this juncture we may take note of the prosecution case
\nthat the appellant had made an extra-judicial confession to PW-
\n12, another VAO on the day following the incident. Though the
\ncourts below have not placed any reliance on this confession,
\nwe take note of this document for the purpose of appreciating
\nthe genuineness of prosecution case. A perusal of this
\nconfession Ex. P-14 gives us an indication of the attempt of the
\nprosecution to build a case against this appellant. This extra
\njudicial confession is so full of facts starting from about 25
\nyears prior to the date of the incident and graphically details
\nwhat happened over these years to his sister and his family
\nwhich actually is the motive suggested by the prosecution for
\nthe crime. Ex. P-14 is recorded in nearly 4 full pages, it not
\nonly speaks of his motive to kill D-1 and D-2 but also gives
\ngraphic details of the nature of the attack on the deceased and
\nalso mentions in detail the persons whom he saw during and
\nafter the incident. In a manner of speaking, if this confession is
\ntrue the appellant had the foresight to guess as to who the
\nprosecution witnesses are going to be and gives an impression,
\ntherefore, he was seeking to corroborate their future evidence.
\nIn our opinion, this would hardly be the natural conduct of an
\naccused if he was voluntarily making a confession. We further
\nnotice the unimaginable similarity in Ex. P-14 and P-1 as also
\nin the evidence of PW-1 which supports the theory of the
\ndefence that there was an attempt by the prosecution to create
\nevidence in this case.\n<\/p>\n
\tWe also notice the fact that the motive suggested by the
\nprosecution for this dastardly attack is supposed to have taken
\nplace first 15 years before the date of the incident It is the
\nprosecution case that so far as Sarasu who is the cause behind
\nthe entire issue, she had been sent away for the last time from
\nthe village 2 years prior to the incident, there was no fresh
\nincident thereafter. Of course the prosecution has tried to fill in
\nthis hiatus by making PW-1 state that the appellant every now
\nand then complained about injustice done to his family and
\nthreatened to take revenge. That apart, there is nothing to show
\nthat the appellant had tried to do anything untoward towards
\nthose deceased persons during those two years or for that matter
\neven before that. Therefore in our opinion it is difficult to
\naccept that this appellant who was 29 years old at the time of
\nthe incident and was gainfully employed, would take recourse
\nto such a crime which would put his entire career and future in
\njeopardy. That apart it has come in evidence that the appellant
\nwas engaged to be married within a few days after the incident
\nand all arrangements for the marriage had been made. In such a
\nsituation we find it extremely difficult to believe that the
\nappellant would have committed this dastardly crime to settle a
\nscore which was no more in existence with D-1 and D-2, in the
\nmanner stated by the prosecution.\n<\/p>\n
For the reasons stated above, we allow this appeal, set
\naside the judgments under appeal as also the conviction and
\nsentence imposed on the appellant and direct his release
\nforthwith, if not required in any other case.\n<\/p>\n
The appeal is accordingly allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Thangavelu vs State Of Tamil Nadu on 29 July, 2002 Author: S Hegde Bench: N Santosh Hegde, D M Dharmadhikari. CASE NO.: Appeal (crl.) 104 of 2002 PETITIONER: THANGAVELU Vs. RESPONDENT: STATE OF TAMIL NADU DATE OF JUDGMENT: 29\/07\/2002 BENCH: N Santosh Hegde & D M Dharmadhikari. JUDGMENT: SANTOSH HEGDE, J. 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