{"id":148029,"date":"2008-10-14T00:00:00","date_gmt":"2008-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vadivel-pillai-vs-the-state-rep-by-the-on-14-october-2008"},"modified":"2016-12-25T09:03:18","modified_gmt":"2016-12-25T03:33:18","slug":"vadivel-pillai-vs-the-state-rep-by-the-on-14-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vadivel-pillai-vs-the-state-rep-by-the-on-14-october-2008","title":{"rendered":"Vadivel Pillai vs The State Rep. By The on 14 October, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Vadivel Pillai vs The State Rep. By The on 14 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 14\/10\/2008\n\nCORAM\nTHE HONURABLE MR.JUSTICE R.REGUPATHI\nAND\nTHE HONURABLE MR.JUSTICE R.SUBBIAH\n\nCriminal Appeal No.1093 of 2001\n\n1.Vadivel Pillai\n\n2.Laxmanan\n\n3.Muniaswamy\n\n4.Vadivel\n\n5.Arumugam\t\t\t\t...  Appellants\/\n\t\t\t\t\t     Accused 1 to 5\n\t\t\t\nVs.\n\nThe State rep. by the\n Inspector of Police,\n Thattaparai.\n(Crime No.257\/95)\t\t\t... Respondent\/\n\t\t\t\t\t    Complainant\n\n\tAppeal filed under Section 374(2) of Cr.P.C., against the order of\nconviction and sentence dated 28.09.2001 passed in S.C.No.250 of 1998 by the\nAdditional Sessions Judge cum Chief Judicial Magistrate, Tuticorin.\n\n!For appellants   ... Mr.G.R.Edmund\n^For respondent   ... Mr.N.Senthur Pandian,\n                      Additional Public Prosecutor\n\t\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by R.REGUPATHI, J.)<\/p>\n
\tThe appellants are A1 to A5 among six accused in S.C.No.250 of 1998 on the
\nfile of the Additional Sessions Judge cum Chief Judicial Magistrate, Tuticorin.
\nOn conclusion of the trial, the appellants were convicted under Sections 147,
\n302 read with 149, 201 read with 149 of the Indian Penal Code and sentenced to
\nundergo six months rigorous imprisonment under Section 147 of the Indian Penal
\nCode; life imprisonment and also a fine of Rs.1,000\/- imposed upon each accused
\nwith default clause, under Section 302 read with 149 of the Indian Penal Code,
\nfive years rigorous imprisonment and also a fine of Rs.1,000\/- imposed upon each
\naccused with default clause, under Section 201 read with 149 of the Indian Penal
\nCode.  A6 in the case was acquitted by the trial Court. The State did not prefer
\nany appeal against the acquittal of A6.  Aggrieved against the conviction and
\nsentence, the appellants\/A1 to A5 in the case, preferred the present appeal
\nbefore this Honourable Court.\n<\/p>\n
\t2. The case of the prosecution as per the first charge framed by the trial
\nJudge is that on 25.08.1995, at about 11.00 a.m., all the accused armed with
\nsticks, joined together
\nand formed an unlawful assembly near the Tamarind Tree at the northern side of
\nUchimahakaliammal Temple in K.P.Thalavaipuram with the common intention to
\nmurder the deceased viz., Subburaj, who is the son-in-law of the first accused
\nand husband of the sixth accused and indulged in rioting; thereby, all the
\naccused have committed an offence punishable under Section 147 of the Indian
\nPenal Code.\n<\/p>\n
\t3. As per the second charge, all the accused armed with stick (Ooli
\nkambu), assaulted the deceased indiscriminately and caused injuries on his head,
\nback, chest, right cheek, right and left knee and caused his death; thereby,
\ncommitted an offence under Section 302 read with 149 of the Indian Penal Code.\n<\/p>\n
\t4. As per the third charge, the appellants\/A1 to A5 in the case, at about
\n12.00 noon, on the same day, with a view to screen the offence, had taken the
\ndead body of the deceased to the graveyard and cremated the same; thereby
\ncommitted an offence under Section 201 read with 149 of the Indian Penal Code.\n<\/p>\n
\t5. Before the learned trial Judge, on the side of the prosecution, PWs.1
\nto 16 were examined, Exs.P1 to P15 were marked and MOs.1 to 6 were produced.\n<\/p>\n
\t6.PW1 is the mother of the deceased, A6 is his wife  and A1 is his father-
\nin-law i.e., father of A6.  It is the case of the prosecution that the marriage
\nof the deceased with A6 was performed about one year prior to the date of
\noccurrence. As per the customs prudent in their community, the deceased was
\nliving with A6 at the residence of A1.  It is also the practice prudent in their
\ncommunity that a house will be set up for the couple by the father of the bride.
\nUnder such circumstances, on 23.08.1995 the deceased, along with A6, attended
\nthe betrothal of his younger sister with the brother of PW2 at Tuticorin.  On
\nthe next day, A6 left Tuticorin and went to her father’s house at Thalavaipuram
\nand the deceased also returned back a little later.  On 25.08.1995, at about
\n11.00 a.m., at Thalavaipuram there was a wordy quarrel between the first accused
\nand the deceased since the deceased demanded a separate house as assured by the
\nfirst accused and PWs.2, 4 and others were present at that time. In pursuance of
\nsuch wordy quarrel, all the accused took sticks (Ooli kambu) from the nearby
\ncart and assaulted the deceased indiscriminately and caused the injuries and the
\ndeceased died instantaneously. Immediately thereafter the accused took the
\ndeceased in the cart and proceeded to the graveyard for cremation.  At that
\ntime, PWs.2 & 4 were also threatened by the accused.  PW1, who is the mother of
\nthe deceased was informed about the occurrence by PW4 and on hearing the news,
\nshe immediately rushed to the village on the same day.   After knowing that the
\ndead body of the deceased was placed in the graveyard, she went there and found
\nthe dead body of the deceased being cremated by the accused.  Since the accused
\nthreatened PW1 and drove her away, she returned back to Tuticorin by walk and on
\nreaching there, she went to the house of her brother, PW9, who was working as
\nPolice Constable at Tuticorin South Police Station to inform him as to what had
\nhappened and found him not there as he had gone to a relative’s house.  On the
\nnext day, viz., on 26.08.1995, PW9 after coming to know that PW1 searched for
\nhim, met her and she told him about the occurrence and thereafter, at 9 p.m. he
\naccompanied PW1 to the Police Station where she gave a complaint and it was
\nreduced into writing under Ex.P1.\n<\/p>\n
\t7.PW14, after receiving a copy of the First Information Report, delivered
\nthe same to the Inspector of Police and thereafter, to the Court.  The First
\nInformation Report was received by the Magistrate concerned at 12.50 p.m. on
\n27.08.1995.\n<\/p>\n
\t8.PW1, in her evidence, has spoken to about the marriage of the deceased
\nwith A6 and also about the participation of the couple viz., the deceased and A6
\nin the   betrothal held on 23.08.1995. On 25.08.1995, PW1 went to Thalavaipuram
\nand PWs.2 & 4 informed her that the deceased was murdered and the dead body of
\nthe deceased was taken to graveyard.  At the time when PW1 reached the
\ngraveyard, arrangements were made by the accused to cremate the dead body.  When
\nPW1 questioned about the same, the first accused pushed her away and A1 to A5
\nalso drover her away and thereafter, the accused cremated the dead body by
\npouring kerosene.  PW1 returned back to Tuticorin by walk and went in search of
\nPW9 viz., her brother. Finding that PW9 was not available at his residence, she
\nreturned back.  On the next day, viz., on 26.08.1995, PW9 came to her residence
\nand accompanied by PW9, she went to the Police Station at 8.30 p.m. and lodged a
\nreport attested by PW9.  Ex.P1 is the complaint given by PW1.\n<\/p>\n
\t9.PW2, in his evidence, stated that on 25.08.1995, at about 11.00 a.m., he
\nwas present in the village viz., Thalavaipuram and had seen the quarrel between
\nthe deceased and the accused. At that time, all the accused caused
\nindiscriminate injuries on the deceased and fourth accused has poked the
\ndeceased by using a stick on the right eye and thereby, his eye ball got
\nprotruded.  When the deceased asked for water, A3 & A5 have poured kerosene in
\nhis mouth and subsequently, again the deceased was assaulted by them. PW2 was
\nthreatened by them and thereafter, the dead body of the deceased was taken in a
\ncart to the graveyard for cremation. PW2 further states that this fact was
\ninformed to PW1 when she came to the village at about 12.00 noon and at that
\ntime,  PW4 was also present.\n<\/p>\n
\t10.According to PW4, he was also present and witnessed the occurrence. He
\nhas corroborated the evidence of PW2.\n<\/p>\n
\t11.PW5, who is alleged to have attested the Observation Mahazar prepared
\nby the investigating officer, turned hostile.\n<\/p>\n
\t12.PWs.6, 7 & 8 have been examined as motive witnesses, who spoke about
\nthe dispute between A1 and deceased on account of refusal of A1 in arranging a
\nseparate house for the deceased.\n<\/p>\n
\t13.PW9 is the brother of PW1, who corroborated the evidence of PW1.  PW9
\naccompanied PW1 to the Police Station for lodging report and he has attested
\nEx.P1.\n<\/p>\n
\t14.PWs.10, 11 & 12 also alleged to have witnessed the occurrence.
\nHowever, they did not support the case of the prosecution and therefore, they
\nwere treated as hostile.\n<\/p>\n
\t15.PW13 is the Village Administrative Officer and in his evidence, he has
\nstated that A1, A2 & A6 were arrested and their statements were recorded.  The
\nadmissible portion of the statement given by A1 is Ex.P6. In pursuance of such
\nstatement, MO.1 was produced by the accused and the same was recovered under
\ncover of mahazar Ex.P7.\n<\/p>\n
\t16.PW14, Police Constable, on 26.08.1995 received the First Information
\nReport and handed over the same to the investigating Officer and thereafter, at
\n12.50 p.m., he has delivered a copy of the same to the learned Judicial
\nMagistrate No.I, Tuticorin.\n<\/p>\n
\t17.PW15, another Police Constable, who had taken the material object from
\nthe scene of occurrence, produced the same with a requisition before the learned
\nJudicial Magistrate.\n<\/p>\n
\t18.PW16 is the investigating officer, on receipt of the First information
\nReport on 27.08.1995 at about 9.00 a.m. through the Constable, proceeded to the
\nscene of occurrence and prepared Observation Mahazar, Ex.P10 and recovered
\nashes, MO.4 from the cremation ground under athatchi Ex.P11, sample earth, MO.5
\nunder Athatchi Ex.P12 and bullock cart, MO.6, and prepared Observation Mahazar
\nEx.P13 and examined the witnesses, who were present while conducting inquest
\nover the ashes, and prepared inquest report Ex.P14.  On 31.08.1995, at about
\n11.30 p.m., A1, A2 & A6 were arrested in the presence of the Village
\nAdministrative Officer.  In pursuance of the statement given  by the first
\naccused, sticks and can were recovered.  On 12.09.1995, A3, A4 & A5 were
\narrested and sent to  judicial custody.  Further, he sent a requisition letter
\nto the learned Judicial Magistrate to forward the material objects for chemical
\nanalysis. PW3, the Court clerk, despatched the material objects for chemical
\nanalysis as per Exs.P2 & P3.  Ex.P4 is the chemical analysis report and Ex.P5 is
\nthe opinion of the Forensic Doctor.  On conclusion of the investigation, PW16
\nfiled the final report against the accused on 20.06.1996 for the offences under
\nSections 147, 302 read with 149, 201 read with 149 of the Indian Penal Code.\n<\/p>\n
\t19.The learned trial Judge, on conclusion of the evidence by the
\nprosecution, questioned the accused under Section 313 of the Code of Criminal
\nProcedure, regarding the incriminating materials produced, for which all the
\naccused claimed innocence and pleaded not guilty.  Neither oral nor documentary
\nmaterials was produced on the side of the defence.  After considering the
\narguments advanced by the defence as well as the prosecution and the materials
\nplaced, the learned trial Judge convicted and sentenced the appellants as stated
\nabove. Aggrieved against the conviction and sentence, the present appeal has
\nbeen preferred before this Honourable Court.\n<\/p>\n
\t20.The learned counsel for the appellants submitted that the occurrence
\ntook place on 25.08.1995 at 11.00 a.m. and the complaint was given to the Police
\nbelatedly i.e., only on 26.08.1995 at 09.00 p.m.  Admittedly, the Police station
\nis at a distance of 8 k.ms. away from the scene of occurrence and PW1, the
\nmother of the deceased, could have immediately given the complaint to the police
\nwith the assistance of PWs.2 & 4,  instead, it is the case of the prosecution
\nthat she went back to Tuticorin by walk covering thirty kilometres to meet her
\nbrother, PW9, who is a Police Constable and finding that PW9 was not available
\non that day, she returned back and on the next day only, she was met by PW9 at
\nher residence and only thereafter, accompanied by PW9 she is said to have gone
\nto the Police Station and lodged Ex.P1. Such a perusal of Ex.P1, would reveal
\nthat it is obsessed with concoction, implicating all the accused.  Though PWs.2
\n& 4 are said to have witnessed the occurrence, they simply stated that the
\ndeceased was attacked indiscriminately.  Thus, according to the learned counsel,
\nthe occurrence would not have taken place in the manner put forth by the
\nprosecution. He further pointed out that the occurrence had taken place in broad
\nday light at 11.00 a.m. in the presence of several eye-witnesses and at a
\nvicinity where the Municipality, public school and several houses are situated.
\nMoreover, though PWs.9 to 13 were examined in the case as independent witnesses,
\nnone of them supported the prosecution case.  PW2 is none else than the brother-
\nin-law of the deceased.  He would not have witnessed the occurrence at all. If
\nreally he had witnessed the occurrence, he would have accompanied PW1 to the
\nPolice station and lodged a complaint.  The presence of PW2 in the scene of
\noccurrence was not mentioned in Ex.P1 and it has been mentioned only in the
\nevidence.  PW2 resides at Tuticorin and the explanation offered by the
\nprosecution to the effect that he visited the scene of occurrence for the
\npurpose of selling lottery tickets, is on the face of it, quite wispy. It is
\nglaring that only because of the reason that PW2 is closely related to the
\ndeceased, he has been planted as an eye-witness in the case.  PW4 is also
\nclosely related to the deceased. Though PW4 is also closely related to the
\ndeceased and PW1, he too never accompanied PW1 either to the graveyard or to the
\nPolice Station for giving complaint.  Therefore, the conduct and attitude of PW4
\nalso creates doubt and the prosecution has purposely planted him as an
\neyewitness to the occurrence.\n<\/p>\n
\tThe learned counsel for the appellants further submits that though the
\nstick has been recovered and it has been stated that it was stained with blood,
\nthe chemical analysis report states otherwise to the effect that no blood stains
\nwere detected. In so far as the opinion which has been received with regard to
\nthe ashes and bones sent for Forensic examination is concerned, it has been
\nstated that it is difficult to ascertain the race, age and sex of the available
\nspecimens. Under such circumstances, it is contended that because of the enmity
\nbetween the deceased and the accused, PWs.1 & 9 with the help of PWs.2 & 4, a
\nfalse case has been foisted on the accused and that the prosecution has failed
\nto substantiate its case beyond reasonable doubt.\n<\/p>\n
\t21.Per contra, the learned Additional Public Prosecutor submits that even
\nin the First Information Report, the occurrence put forth by the prosecution has
\nbeen fully narrated including the motive.  Moreover, it has been further
\nnarrated as to how PW1 came to know about the occurrence, reached the scene of
\noccurrence and lodged the First Information Report.  Merely because of the
\nreason that PWs.2 & 4 are related, in a grave case like this, their evidence
\ncannot be discarded on the ground that they are interested witnesses.  PWs.6 to
\n8 speak about the motive part of the case of the prosecution to the effect that
\nthere used frequent quarrels between A1 and the deceased since the deceased
\ndemanded allocation of a house by the first accused.  Though there is a delay in
\nlodging the First Information Report, such delay has been explained by the
\nprosecution to the effect that in view of communal clash, PW1 could not get any
\nvehicle.  Therefore, she returned by walk and since she happened to be a lady,
\nthere is nothing wrong in getting assistance of her brother, PW9 and with his
\nassistance, without much delay, she  gave the complaint Ex.P1 to the Police.
\nThe evidence of PW1 has been corroborated by the evidence of PWs.2 & 4 and their
\ntestimonies are cogent and convincing.  There is no need for those witnesses to
\nfalsely implicate all the accused.  A6 in the case has been rightly acquitted by
\nthe trial Judge only because of the reason that there was contradiction in the
\nevidence of PWs.2 & 4.  However, insofar as A1 to A5 is concerned, there are
\nconvincing oral and documentary evidence to connect them with the crime.  By
\nsubmitting that the order of the trial Court is well founded,  learned
\nAdditional Public Prosecutor pleads that the appeal may be dismissed.\n<\/p>\n
\t22.We have heard the submissions made by the learned counsel for the
\nappellants and the Additional Public Prosecutor.\n<\/p>\n
\t23.The occurrence had taken place in broad day light and had been
\nwitnessed by several persons. Though the occurrence has taken place on the
\nstreet, near Municipality, public school and houses, except PWs.2 & 4, the
\npersons who were examined as independent witnesses did not support the
\nprosecution case.  PW2 is the brother-in-law  and PW4 is a close relative of the
\ndeceased. PWs.2 & 4 alone have given graphic pictures about the occurrence to
\nPW1 and therefore, the name of PW2 could not have been omitted in the First
\nInformation Report. But the name of PW2 has not been mentioned in the First
\nInformation Report. Under such circumstances, we could infer that PW2, who is
\nthe brother-in-law of the deceased, has been purposely planted as an eyewitness
\nin the case. As rightly pointed out, if really PW2 is an eyewitness to the
\noccurrence, he would have accompanied PW1 to the Police Station from the scene
\nof occurrence and under such circumstances, the complaint could have been given
\nimmediately without any loss of time.  There was communal riot and PW1 alleged
\nto have walked all the way for 30 k.m. to Tuticorin instead she could have
\nreached the Police Station with the help of PWs 2 & 4 which is situated within 8
\nk.m.\n<\/p>\n
\t24.Further, it appears that the occurrence would not have taken place in
\nthe manner as put forth by the prosecution There is no reason as to why PW1
\nwalked all the way to Tuticorin to seek the assistance of PW9, who is a Police
\nConstable.  A graphic narration has been given in the First Information Report
\nand concoction is looming large on the perusal of the First Information Report.
\nPWs.2 & 4 are also closely related to the deceased.  They would have accompanied
\nPW1, but they did not do so.  It is the case of the prosecution that PW1, after
\nreceiving information from PWs.2 & 4, went alone to the  graveyard and
\nsubsequently returned back by walk to Tuticorin which is situated thirty
\nkilometres away. Though she has stated that she reached the scene of occurrence
\nthrough bus, she has stated that such bus facility was not available for
\nreturning back to Tuticorin.  The reason
\nassigned is that there was some communal riots.  At any rate, PW1 walking back
\nthirty kilometres in an agonizing moment is unbelievable.  The First Information
\nReport also had reached the learned Judicial Magistrate much belatedly. The
\nexplanation offered by the Constable that he first went to the Inspector of
\nPolice and subsequently, to the Judicial Magistrate to deliver copy of the First
\nInformation Report, is also unbelievable. Under such circumstances, it is very
\nmuch apparent that the prosecution case has been foisted with deliberation and
\nconsultation and all the accused were purposely implicated in the case.  Though
\nashes have been recovered from the graveyard, the prosecution has not
\nestablished that they are the burnt ashes of the deceased.  Though it has been
\nstated that the weapons of offence were stained with blood, such aspect has not
\nbeen substantiated through chemical analysis\/Forensic report.\n<\/p>\n
\t25.In the light of the above discussion, We hold that the evidence of
\nPWs.2 & 4 are unreliable and the result would be that we have to necessarily
\nhold that the case of the prosecution has not been proved beyond reasonable
\ndoubt.  The reasons assigned by the trial Judge for convicting the accused are
\nunacceptable.   The evidence of PWs.2 & 4 and that of PW1 is highly artificial.
\nUnder such circumstances, we are left with no other option except to acquit the
\naccused.\n<\/p>\n
\t26.In the result, the order of conviction and sentence passed by the trial
\nCourt is set aside.  Fine amount, if paid, is ordered to be repaid. Bail bonds
\nexecuted stands cancelled.\n<\/p>\n
\t27.With the above observations, the appeal is allowed.\n<\/p>\n
gcg<\/p>\n
To\n<\/p>\n
1.The Additional Sessions cum Chief
\n  Judicial Magistrate, Tuticorin.\n<\/p>\n
2.The Inspector of Police,
\n  Thattaparai.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Vadivel Pillai vs The State Rep. By The on 14 October, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14\/10\/2008 CORAM THE HONURABLE MR.JUSTICE R.REGUPATHI AND THE HONURABLE MR.JUSTICE R.SUBBIAH Criminal Appeal No.1093 of 2001 1.Vadivel Pillai 2.Laxmanan 3.Muniaswamy 4.Vadivel 5.Arumugam … Appellants\/ Accused 1 to 5 Vs. The State […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-148029","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVadivel Pillai vs The State Rep. 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