{"id":18627,"date":"2007-04-12T00:00:00","date_gmt":"2007-04-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vadaveli-alias-vadivelu-vs-state-rep-by-on-12-april-2007"},"modified":"2016-05-14T12:38:07","modified_gmt":"2016-05-14T07:08:07","slug":"vadaveli-alias-vadivelu-vs-state-rep-by-on-12-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vadaveli-alias-vadivelu-vs-state-rep-by-on-12-april-2007","title":{"rendered":"Vadaveli Alias Vadivelu vs State Rep. By on 12 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Vadaveli Alias Vadivelu vs State Rep. By on 12 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 12\/04\/2007\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nCRL.A.(MD) No.206 of 2005\nCRL.A.(MD) No.208 of 2005\n\n\n1.Vadaveli alias Vadivelu\n2.Kovilsamy\n3.Chinnaiah\t\t\t.. Appellants in\n\t\t\t\t   C.A.206 of 2005\n\n1.Karuppaiyah\n2.Mandaiyan alias Veeranan\t.. Appellants in\n\t\t\t\t   C.A.208 of 2005\n\nvs\n\n\nState rep. by\nInspector of Police\nPoovanthi Police Station\nPoovanthi Taluk\nSivagangai District\nCrime No.24 of 2002\t\t.. Respondent in<\/pre>\n
\t\t\t\t   both appeals<\/p>\n
\tCriminal appeals preferred under Sec.374(2) of Cr.P.C. against the
\njudgment of the District and Sessions Judge, Sivagangai, dated 23.3.2005 and
\nmade in S.C.No.10 of 2004.\n<\/p>\n
!For Appellants
\nin C.A.206\/2005\t…  Mr.AR.L.Sundaresan
\n\t\t     Senior Counsel
\n\t\t     for Ms.AL.Gandhimathi<\/p>\n
For Appellants
\nin C.A.208\/2005\t…  Mr.G.R.Swaminathan for A-4
\n\t\t     Mr.S.Veeranasamy for A-5<\/p>\n
^For Respondent\t…  Mr.A.Balaguru,
\n\t\t     Additional Public Prosecutor<\/p>\n
:COMMON JUDGMENT<\/p>\n
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)<\/p>\n
\tThis judgment shall govern these two appeals in C.A.No.206\/2005 by A-1 to
\nA-3 and in C.A.No.208\/2005 by A-4 and A-5.\n<\/p>\n
\t2.The appellants in both these appeals stood charged and tried for the
\nfollowing offences:\n<\/p>\n
I. A-1 to A-3 – under Sec.148 of I.P.C.\n<\/p>\n
II. A-4 and A-5 – under Sec.147 of I.P.C.\n<\/p>\n
III. A-1 to A-5 – under Sec.302 read with 34 of I.P.C.\n<\/p>\n
\t3.On trial, they were found guilty as per the charges.  A-1 to A-3 were
\nawarded 2 years Rigorous Imprisonment under Sec.148 of I.P.C.  A-4 and A-5 were
\nawarded 1 year Rigorous Imprisonment under Sec.147 of I.P.C.  A-1 to A-5 were
\nawarded life imprisonment along with a fine of Rs.1,000\/- and default sentence
\nunder Sec.302 read with 34 of I.P.C.\n<\/p>\n
\t4.The short facts necessary for the disposal of these appeals can be
\nstated thus:\n<\/p>\n
\t(a) A-1 and A-2 are the sons of A-3.  A-4 and A-5 were closely related to
\nA-1 to A-3.  A-1 to A-3 belonged to Sangampatti, while A-4 and A-5 belonged to
\nthe nearby village.  P.W.1 is the mother of the deceased Malaichamy.  Malaichamy
\nwas living with his family members at Arasanoor.  P.W.3 was running a petty shop
\nnearby the house of Malaichamy.  P.W.4 is the cousin brother of Malaichamy, who
\nis also a resident of the said village and whose house is situated near the
\nplace of occurrence.  P.W.5 was working as Driver under P.W.8, who is the former
\nPanchayat President of Arasanoor.  P.W.5 was having agricultural lands adjacent
\nto the lands belonging to A-3.  In the past, A-3 was watering his lands by
\ntaking water from the well situated in P.W.5’s lands.  Since the water drained,
\nP.W.5 could not give water to A-3.  Over that, A-3 was aggrieved.  While the
\nmatter stood thus, A-3’s daughter Booma, fell in love with the brother of P.W.5,
\nTiruselvam.  They wanted to marry, and A-3 was also amenable for that.  But, the
\nfamily members of P.W.5 were objecting to the same.  Thus,   A-3 became further
\nangry.  While the matter stood thus, the sugarcane field of P.W.5 was ripe for
\nharvest.  When P.W.5 made his attempt to harvest, it was objected to by A-3.
\nUnder the circumstances, P.W.5 had the help of the deceased Malaichamy for the
\nharvest.  Malaichamy took sufficient man power and went over to the field.
\nDespite the objections by A-3, he cut the sugarcane from the field.  By this,
\nA-3 developed animosity against Malaichamy.\n<\/p>\n
\t(b) On the date of occurrence, that was on 5.4.2002, A-3 along with A-1,
\nA-2, A-4 and A-5 proceeded to Arasanoor in two two-wheelers marked as M.Os.4 and
\n7 respectively, A-1 and A-2 in one vehicle and A-3 to A-5 in the other.  They
\nproceeded to the house of the deceased Malaichamy. at about 9.00 P.M., when
\nMalaichamy was taking food in his house being served by his daughter-in-law.  At
\nthat time, P.W.1 was actually standing in front of the house.  Both these
\nvehicles were stopped.  The accused got down.  A-3 shouted “The person who
\nharvested the sugarcane, must come out.”  Malaichamy on hearing this, came out
\nand questioned why the accused who belonged to a different place, came there to
\nquarrel with them.  At that time, A-1 and A-2 were armed with knives, and A-3
\nhad an aruval in hand.  Both of them attacked him, while A-3 attacked on his
\nhead; but, it fell on his arms.  Malaichamy sustained severe injuries, and he
\nfell down.  This was witnessed by P.Ws.1, 2 and 3.  All the accused persons ran
\naway from the place of occurrence.  In the Ambassador Car belonging to P.W.8,
\nMalaichamy was taken to Meenakshi Mission Hospital at Madurai by P.Ws.1 and 4.
\nP.W.12, the Doctor, who was on duty at that time, admitted Malaichamy on
\n5.4.2002 at 10.09 P.M., and the accident register copy in this regard is marked
\nas Ex.P9.  The x-ray taken, is marked as Ex.P12.\n<\/p>\n
\t(c) An intimation was given to Othakadai Police Station and in turn, sent
\nto the respondent police.  P.W.11, the Sub Inspector of Police, proceeded to
\nMeenakshi Mission Hospital, Madurai, where he recorded the statement of P.W.1,
\nmarked as Ex.P1, on the strength of which a case came to be registered by the
\nrespondent police in Crime No.24\/2002 under Sections 147, 148, 341, 324 and 307
\nof I.P.C.  The printed First Information Report, Ex.P7, was despatched to the
\nCourt.\n<\/p>\n
\t(d) P.W.14, the Inspector of Police of the Circle, on receipt of the copy
\nof the FIR, took up investigation, proceeded to the scene of occurrence, made an
\ninspection in the presence of witnesses and prepared Ex.P2, the observation
\nmahazar, and Ex.P14, the rough sketch.  Pending the investigation, he first
\narrested A-5, who gave a confessional statement.  The admissible part of the
\nsame is marked as Ex.P4.  M.Os.1 to 3, the weapons of crime, namely aruval and
\nknives respectively, produced by him, were recovered under a cover of mahazar.
\nA-5 was sent for judicial remand.  The Investigating Officer came to know that
\nall other accused surrendered before the Judicial Magistrate’s Court.  Despite
\nthe treatment, Malaichamy died in the hospital on 13.4.2002 at 8.10 A.M.  Then,
\nthe case was altered to Sec.302 of I.P.C.  The express report, Ex.P15, was
\ndespatched to the Court.  The Investigator made an inquest on the dead body of
\nMalaichamy in the presence of witnesses and panchayatdars and prepared an
\ninquest report, Ex.P16.  The dead body was sent to Rajaji Government Hospital,
\nMadurai, along with a requisition, Ex.P6, for the purpose of autopsy.\n<\/p>\n
\t(e) P.W.13, the Tutor in Forensic Medicine, Madurai Medical College,
\nMadurai, on receipt of the said requisition, conducted autopsy on the dead body
\nof Malaichamy and found 6 injuries.  The Doctor has issued a postmortem
\ncertificate, Ex.P13, with his opinion that the deceased would appear to have
\ndied of complications due to injuries No.1 and 2 sustained by him.\n<\/p>\n
\t(f) All the material objects recovered from the place of occurrence, and
\nthe weapons of crime recovered from A-5, were subjected to chemical analysis by
\nthe Forensic Sciences Department, which resulted in Ex.P19, the Chemical
\nAnalyst’s report.  The Investigating Officer completed the investigation and
\nfiled the final report.\n<\/p>\n
\t5.The case was committed to Court of Session, and necessary charges were
\nframed.  In order to substantiate the charges, the prosecution examined 14
\nwitnesses and also relied on 19 exhibits and 7 material objects.  On  completion
\nof the evidence on the side of the prosecution, the accused were questioned
\nunder Sec.313 of Cr.P.C. as to the incriminating circumstances found in the
\nevidence of the prosecution witnesses, which they flatly denied as false.  On
\nthe side of the defence one Veerayee was examined as D.W.1; but, no documents
\nwere marked.  The trial Court heard the arguments advanced on either side, and
\non scrutiny of the materials available, took the view that the prosecution has
\nproved the case beyond reasonable doubt.  The trial Court entered a judgment of
\nconviction and imposed the punishment referred to above.  Hence, these two
\nappeals at the instance of the appellants.\n<\/p>\n
\t6.Advancing his arguments on behalf of A-1 to A-3, the learned Senior
\nCounsel Mr.AR.L.Sundaresan, would submit that in the instant case, all lacunas
\nand infirmities are noticed in the prosecution case; that despite the same, the
\ntrial Court has taken an erroneous view and found these appellants guilty; that
\naccording to the prosecution, the occurrence has taken place at about 9.00 P.M.
\non 5.4.2002, and an intimation was given to Othakadai Police Station, and in
\nturn, the Officials attached to Othakadai Police Station, should have given
\ninformation to the respondent police; but, according to the Sub Inspector of
\nPolice, P.W.12, he came to Meenakshi Mission Hospital and recorded the statement
\nof P.W.1, and in turn, registered the case under Sec.307 of I.P.C. at about
\n11.30 A.M. on the next day; that under the circumstances, there was a long delay
\nin registration of the case; that apart from this, while the case was registered
\non 6.4.2002, the FIR was sent to the Judicial Magistrate’s Court only on
\n7.4.2002 at 6.50 P.M., and this would be indicative of the fact that all
\nembellishments and improvements have also been made in the FIR before it reached
\nthe Court; that all these suspicions in this delay would become strengthened by
\nthe evidence given by the Investigating Officer; that according to the
\nInvestigating Officer, when the deceased was under treatment, he gave a
\nstatement to him, which was also recorded, and thus, it would be quite clear
\nthat in the instant case, there was an occasion for the victim himself to give a
\nstatement, and the same was recorded by the Investigating Officer; that had it
\nbeen placed before the Court, the actual truth of the case would have been
\nunfolded, but not done so; that in such circumstances, the Court has to draw an
\nadverse inference available under Sec.114 of the Evidence Act; and that this
\nwould go against the prosecution case.\n<\/p>\n
\t7.Added further the learned Senior Counsel that so far as the scene of
\noccurrence is concerned, discrepant versions have been brought forth; that
\naccording to P.W.1, the occurrence has taken place in front of her house; that
\naccording to P.W.2, it has taken place on the west of the cement road; that
\naccording to P.W.3, it has taken place near the house of Thangathi; that under
\nthe circumstances, the prosecution was unable to fix the place of occurrence at
\nall; but, according to the witnesses, they are different; and that if to be so,
\nit would indicate that the so-called eyewitnesses P.Ws.1 to 3, could not have
\nseen the occurrence at all.\n<\/p>\n
\t8.The learned Senior Counsel would further add that the occurrence has
\ntaken place at about 9.00 P.M.; that there is no light at that time; that though
\nP.Ws.1 to 3 claimed that there was light, the existence of light was not proved
\nby the prosecution; that it would be quite clear that no light was available,
\nwhich would also be clear from the two documents namely observation mahazar and
\nrough sketch; that if actually light was available, a duty was cast upon the
\nprosecution to examine someone from the Electricity Board to show that there was
\nelectric energy and light was also burning at the time of the occurrence, but
\nnot done so; that this would also indicate that the eyewitnesses could not have
\nseen the occurrence at all; that P.W.1 is the mother; that P.W.2 is called to be
\nan independent witness; that P.W.3 is a tea shop wallah nearby the house; that
\naccording to the prosecution, they are eyewitnesses; that needless to say that
\nP.W.1 is the mother of the deceased, and hence, she is an interested witness;
\nthat as far as P.W.3 was concerned, at the time of the occurrence, after hearing
\nthe cry, he took a torch light and came out; that this would be indicative of
\nthe fact that no light was available in the street and also P.W.3 could have
\ncome to the occurrence place only after the occurrence was over, and thus, P.W.3
\ncould not have seen the occurrence at all; that it remains to be stated that the
\nstatements of these witnesses under Sec.161 Cr.P.C., have reached the Court only
\non 15.4.2002, and there was a delay of more than a week; that had they been
\nreally examined immediately at the time of inquest or afterwards, there was no
\nreason why it was despatched to the Court after a week; that it is pertinent to
\npoint out that the prosecution has claimed that at the time of the occurrence,
\nhis wife, son, daughter and other witnesses were also present, and their
\nstatements under Sec.161 were also recorded by the Investigating Officer; that
\napart from that, the prosecution claimed that the occurrence has taken place in
\nfront of the house of Malaichamy; that if to be so, they were all material
\nwitnesses; but, no one was examined; and that this would be fatal to the
\nprosecution case.\n<\/p>\n
\t9.The learned Senior Counsel would further add that in the instant case,
\nthe motive attributed by the prosecution for the crime, was too remote; that
\nP.W.1 has admitted that the sugarcane field was harvested by Malaichamy just
\nbefore six months; that they are all nearby villages; that if really A-3 was
\naggrieved over the act of Malaichamy, he would have taken him to task
\nimmediately; that there was no reason for them to come to the house of
\nMalaichamy, that too after a period of six months, to attack him; that it is
\nhighly remote; that in this regard, Ex.P1 is thoroughly silent; and that it
\nwould be quite clear that it was a subsequent development by the prosecution
\npending the trial.\n<\/p>\n
\t10.The learned Senior Counsel would further add that in the instant case,
\nat the time of the operation, it was one Munusamy,  who was present, and who
\ngave consent for the operation to be done; that it would be quite clear that
\nthere were two rival groups in the panchayat election; that under the
\ncircumstances, Malaichamy should have sided one of them; that this would
\nindicate that they wanted to take revenge, and therefore, the names of the
\naccused have been roped in, and for all these reasons, they are entitled fore
\nacquittal; but, the lower Court has not considered any one of the aspects of the
\nmatter, but has taken an erroneous view.\n<\/p>\n
\t11.Advancing his arguments on behalf of A-4 and A-5, the learned Counsel
\nwould submit that in the instant case, so far as   A-4 and A-5 are concerned, no
\nmotive is attributed; that mere relationship of these two accused with A-1 to A-
\n3 cannot be a reason to sustain a conviction; that merely because they were
\nrelations, they have been roped in falsely; that even as per the evidence of
\nP.W.1, both of them were catching hold of the deceased at the time of occurrence
\nin the front and back; that if to be so, the injuries that were found, could not
\nhave been caused at all; that at the time of occurrence, A-5 was fully in a
\ndrunken mood; that according to P.W.2, A-5 was unconscious, and he fell down 20
\nfeet away from the place of occurrence; that if a person like A-5 was under
\nintoxication and fell down, he could not have been a participant at the time of
\nthe occurrence; that he has been falsely roped in; that according to the
\nprosecution, they have come in two motorbikes, and one of them has been
\nrecovered from A-5, while the other has been recovered from the owner of the
\nvehicle namely P.W.6; that from the evidence of P.W.6, it would be quite clear
\nthat he used to keep the vehicle outside, and the vehicle was taken on that day;
\nbut, he did not know by whom it was taken; that it was recovered from him; and
\nthat if the vehicle was actually taken by the accused at the time of the
\noccurrence, how P.W.6 happened to possess the vehicle subsequently is made
\nunknown.\n<\/p>\n
\t12.Added further the learned Counsel that in the instant case, it is a
\nmatter of surprise to note that A-5 was the only person arrested; that according
\nto the prosecution, he volunteered to give a confessional statement, and he
\nproduced all the weapons of crime, which were held by A-1 to A-3; that it is not
\nonly false, but also this part of the evidence as to the confession and recovery
\ncannot, but be false; that this part of the evidence cannot bind A-1 to A-3
\nlegally or A-4 and A-5 factually, and hence, they are entitled for acquittal in
\nthe hands of this Court.\n<\/p>\n
\t13.The Court heard the learned Additional Public Prosecutor on all the
\nabove contentions and paid its anxious consideration on the submissions made.\n<\/p>\n
\t14.It is not a fact in controversy that one Malaichamy following an
\nincident that took place at about 9.00 P.M. on 5.4.2002 at Arasanoor Village,
\nsustained injuries, and he was directly taken by P.Ws.1 and 4 to Meenakshi
\nMission Hospital, Madurai, where despite treatment, he died on 13.4.2002.
\nOriginally, the case was registered under Sec.307 of I.P.C. by the respondent
\npolice, and on his death, it was converted to Sec.302 of I.P.C.  Following the
\ninquest conducted by the Investigating Officer, the dead body was subjected to
\npostmortem by P.W.13, the Doctor, and he has given his categorical opinion that
\nMalaichamy died  of complications due to injuries No.1 and 2 sustained by him.
\nHence, factually, the Court feels no impediment in recording that he died out of
\nhomicidal violence.\n<\/p>\n
\t15.In order to substantiate the case of the prosecution, three witnesses
\nhave been examined as eyewitnesses namely P.Ws.1 to 3.  P.W.1 is the mother of
\nthe deceased.  P.W.2 is an independent witness.  P.W.3 is the tea shop wallah.
\nBefore analyzing the evidence of these three witnesses to find out whether it
\ncould be accepted, the Court has to analyze all the incidents that took place
\npreceding the occurrence.  The case of the prosecution was that P.W.5 had lands
\nadjacent to that of A-3, and A-3 was taking water from the well situated in
\nP.W.5’s land, and P.W.5 did not help him thereafter, and A-3 developed animosity
\nagainst him, and this is the direct motive for the crime.  According to the
\nprosecution, there was a love affair between the daughter of A-3 Booma and the
\nbrother of P.W.5.  Following the love, the family members of A-3 were amenable
\nfor the marriage, while P.W.5’s family members were not amenable.  This is the
\nsecond part of the motive, according to the prosecution. But, this is also not
\nthe immediate motive for the occurrence, since the deceased person in the
\ninstant case was one Malaichamy and no one else and in particular, not the
\nmembers of P.W.5’s family.  According to the prosecution, the specific motive
\nfor the occurrence was when there was an attempt made by P.W.5 to harvest his
\nsugarcane field, it was stopped by   A-3, and at that juncture, P.W.5 had no
\noption than to leave it to be harvested by the said Malaichamy, a contractor,
\nand accordingly, Malaichamy with sufficient manpower went over to the field and
\nharvested the same despite the objections made by A-3, and thus,  Malaichamy, a
\nperson belonging to a different village, came over there and harvested the land
\nof P.W.5, despite the objections made by A-3, and the same was the real reason
\nfor A-3 to commit the offence with his sons A-1 and A-2 and two of his relations
\nwho are A-4 and A-5, at the time of occurrence.  As far as the motive part is
\nconcerned, according to P.W.1, the harvest of the land had taken place six
\nmonths before.  If to be so, had it been the real grievance of A-3, he would
\nhave taken Malaichamy to task immediately, and he would not have waited for a
\nperiod of six months.  It remains to be stated that the villages are adjacent to
\neach other, and they had got occasion to meet either, or one cannot expect
\nanybody to wait for period of six months and come forward with such a motive to
\ncommit the crime.  In such circumstances, the motive attributed by the
\nprosecution, is too remote.  Therefore, this Court is unable to agree with the
\ncase of the prosecution in that regard.\n<\/p>\n
\t16.So far as the occurrence is concerned, the prosecution has examined
\nP.Ws.1 to 3, as referred to above.  According to the prosecution, the occurrence
\nhas taken place in front of the house of  Malaichamy.  As far as the scene of
\noccurrence is concerned, the witnesses have got different versions.  According
\nto P.W.1, it was really in front of the house.  As far as P.W.2 is concerned, it
\nwas on the western part of the cement road.  As regards P.W.3, he came out on
\nhearing the cry with the torch light to see the occurrence.  All put together
\nwould go to show that till the end of the trial, the prosecution was unable to
\nfix the scene of occurrence.  Now, at this juncture, this Court wanted for the
\npurpose of guidance, two documents used to be prepared by the Investigating
\nOfficer.  One is the sketch, and the other is the observation mahazar.  A
\nperusal of the observation mahazar would indicate that the occurrence has taken
\nplace in front of the house of Malaichamy.  But, P.Ws.2 and 3 have given
\ndifferent versions, and in no way, Ex.P14, the so-called sketch, had helped the
\nCourt to fix the scene of occurrence.  Thus, the scene of occurrence is not
\nfixed.\n<\/p>\n
\t17.Added circumstance in the instant case is that while the Investigator
\nhas examined the wife, son, daughter and other independent witnesses, who were
\nall present at the time of the occurrence, and their statements have been
\nrecorded under Sec.161 of Cr.P.C., for the reasons best known to the
\nprosecution, no one witness was examined in Court.\n<\/p>\n
\t18.There are other circumstances also.  According to the prosecution, the
\noccurrence has taken place at 9.00 P.M., and the deceased was immediately taken
\nfrom the place of occurrence namely Arasanoor, to Meenakshi Mission Hospital,
\nMadurai, where P.W.12, the Doctor, has medically examined him and has given the
\naccident register.  According to P.W.12, the Doctor, immediately an intimation
\nwas given to Othakadai Police Station nearby.  P.W.9, the Head Constable,
\nattached to Othakadai Police Station, would claim that he received the
\nintimation the next morning at about 7.15 A.M.  In order to substantiate the
\nfact that this was received by him by way of a written intimation either, or
\nthereafter, he gave information to the respondent police, no acceptable evidence
\nis before the Court.  If such an intimation was actually received, the regular
\nprocedure of the Police Station in the usual course would be to record the same
\nin the General Diary; but, no documentary evidence was produced.  According to
\nthe Sub Inspector of Police, on receipt of the information, he proceeded to
\nMeenakshi Mission Hospital, and he found that the injured Malaichami could not
\nspeak, and thereafter, he recorded the statement of P.W.1.  In the case on hand,
\nwhile the occurrence has taken place at about 9.00 P.M., the F.I.R. has come
\ninto existence at about 11.30 A.M. on 6.4.2002, i.e., 14 r hours late.  Thus,
\nthe evidence adduced by the prosecution that there was a written intimation
\nreceived by Othakadai Police Station, and in turn, it was given to the
\nrespondent Police Station, and thereafter, the Sub Inspector of Police rushed
\nover there is highly doubtful.  It may be in order to cover the delay that has
\nalready been caused.  Now, at this juncture, the Court can comment that the
\ndelay of 14 r hours in recording the First Information Report remained
\nunexplained by the prosecution.\n<\/p>\n
\t19.Apart from the above, according to the Investigator, he has recorded
\nthe statement of Malaichamy when he was under treatment at Meenakshi Mission
\nHospital.  If to be so, that document should have seen the Court; but, till the
\nend, it has been thoroughly suppressed.  As rightly pointed out by the learned
\nSenior Counsel for the appellants, this document, in the opinion of this Court,
\nis actually very vital to the prosecution case.  Once the victim himself has
\ngiven a statement, and it has also been recorded  by the Sub Inspector of
\nPolice, such document should have been produced before the Court in order to
\nenable the Court to know about the case; but, it has been suppressed.  The
\nsuppression of the document itself is fatal.  In such circumstances, the Court
\nhas to draw an adverse inference so far as the non-production of the document is
\nconcerned.\n<\/p>\n
\t20.The further circumstance is that the statements of the witnesses
\nrecorded by the Investigating Officer under Sec.161 of Cr.P.C., were sent to the
\nCourt after one week.  This would be indicative of the fact that after the death
\nof the concerned person, these statements should have been recorded to suit the
\nprosecution case, and thereafter, it should have been sent.\n<\/p>\n
\t21.Added circumstances are that as far as A-4 and A-5 were concerned,
\naccording to the eyewitnesses, they were catching hold of the deceased in the
\nfront and back.  If to be so, such injuries as found in the postmortem
\ncertificate, could not have been caused.  Further, it is highly doubtful whether
\nP.Ws.1 to 3 could have been eyewitnesses as claimed by the prosecution.  It
\nremains to be stated that all the weapons of crimes namely M.Os.1 to 3, were
\nrecovered from A-5 immediately on his arrest.  The case of the prosecution is
\nnot that A-5 was armed with any weapon or he wielded the same.  On the contrary,
\nthe evidence of P.W.2 was that he was in a drunken mood and fully unconscious,
\nand immediately after the occurrence, he fell down about 20 feet away.  Needless
\nto say that the recovery made from A-5 pursuant to his confession, would not in
\nany way legally bind A-1 to A-3.  As regards A-5, it is highly doubtful whether
\nhe would have given such a confession leading to the recovery of one of M.Os.1
\nto 3 and also M.O.7.\n<\/p>\n
\t22.Now, the crowing circumstance in respect of the recovery, is the
\nrecovery of M.O.4, the motorcycle.  According to the prosecution, A-1 and A-2 in
\none bike and A-3 to A-5 in another bike went to Arasanoor Village.  According to
\nP.W.6, he is the owner of M.O.4.  If to be so, when his vehicle was taken at the
\ntime of occurrence remained unknown.  This was not recovered by the police; but,
\nP.W.6 was found to be in possession and from him, it was recovered.  Thus, the
\ninvestigation should have gone in that line.  According to P.W.6, he got it back
\nfrom the accused.  But, there is no evidence in this regard.  Thus, it becomes
\ndoubtful whether M.O.4 was one of the vehicles used by the accused at the time
\nof the occurrence.  All these infirmities and lacunas are noticed by the Court.
\nThis Court is of the considered opinion that merely because P.Ws.1 to 3 happened
\nto be the eyewitnesses, in view of the suspicious circumstances attendant over
\nthe same, it would be highly unsafe to accept the evidence of P.Ws.1 to 3 to
\nsustain a conviction in a case of murder like this.  But, the lower Court has
\nnot considered any one of the aspects of the matter, as rightly pointed out by
\nthe learned Senior Counsel for the appellants.  Under the circumstances, this
\nCourt is of the view that the prosecution has not proved the case beyond
\nreasonable doubt, and the appellants are entitled for acquittal.\n<\/p>\n
\t23.In the result, both these criminal appeals are allowed, setting aside
\nthe judgment of the lower Court.  The appellants are acquitted of the charges
\nlevelled against them.  The bail bonds executed by A-4 and A-5, shall stand
\nterminated.  The fine amounts if any paid by the appellants, will be refunded to
\nthem.\n<\/p>\n
To<\/p>\n
1. The District and Sessions Judge
\n   Sivagangai\n<\/p>\n
2. The Inspector of Police
\n   Poovanthi Police Station
\n   Poovanthi Taluk
\n   Sivagangai District
\n   Crime No.24\/2002\n<\/p>\n
3. The Public Prosecutor
\n   Madurai Bench of Madras High Court<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Vadaveli Alias Vadivelu vs State Rep. By on 12 April, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12\/04\/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.A.(MD) No.206 of 2005 CRL.A.(MD) No.208 of 2005 1.Vadaveli alias Vadivelu 2.Kovilsamy 3.Chinnaiah .. Appellants in C.A.206 of 2005 1.Karuppaiyah […]<\/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-18627","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVadaveli Alias Vadivelu vs State Rep. 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