{"id":261927,"date":"2008-02-08T00:00:00","date_gmt":"2008-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahendran-vs-state-rep-by-on-8-february-2008"},"modified":"2018-03-18T20:57:28","modified_gmt":"2018-03-18T15:27:28","slug":"mahendran-vs-state-rep-by-on-8-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahendran-vs-state-rep-by-on-8-february-2008","title":{"rendered":"Mahendran vs State Rep. By on 8 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Mahendran vs State Rep. By on 8 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 08\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE S.PALANIVELU\n\nCRL.A.(MD) No.298 of 2007\n\n1.Mahendran\n2.Nehru\t\t\t\t\t\t\t\t.. Appellants\n\n\nvs\n\nState rep. by\nInspector of Police\nSattur Town Police Station\nVirudhunagar District\nin Cr.No.442\/2005\t\t\t\t\t\t.. Respondent\n\n\n\tCriminal appeal preferred under Sec.374 of the Code of Criminal Procedure\nagainst the judgment of the Principal Sessions Judge, Virudhunagar District at\nSrivilliputtur, in S.C.No.92\/2006 dated 15.6.2007.\n\n!For Appellants\t\t...  Mr.K.Chellapandian\n\t\t\t      Senior Counsel\n\t\t\t     for Mr.G.Mari Muthu\n\n^For Respondent\t\t...  Mr.C.Daniel Manoharan\n\t\t\t     Additional Public Prosecutor\n\n\n:JUDGMENT\n<\/pre>\n
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.)<\/p>\n
\tChallenge is made to a judgment of the Principal Sessions Division,
\nVirudhunagar at Srivilliputtur, made in S.C.No.92 of 2006 whereby these
\nappellants who were ranked as A-1 and A-2 respectively, stood charged namely A-1
\nand A-2 under Sections 341<\/a> and 506(ii)<\/a> of IPC, A-1 under Sec.302 of IPC<\/a> and A-2
\nunder Sec.302 read with 34 of IPC<\/a>.\n<\/p>\n
\t2.On trial, A-1 and A-2 were found guilty under Sec.341 of IPC<\/a> and awarded
\none month Simple Imprisonment.  A-1 was found guilty under Sec.302 of IPC<\/a>, while
\nA-2 was found guilty under Sec.302 read with 34 of IPC<\/a>.  A-1 and A-2 were
\nawarded life imprisonment and a fine of Rs.1,000\/- with default sentence.  Both
\nthe accused were acquitted of the charge under Sec.506(ii) of IPC<\/a>.  Hence, this
\nappeal has arisen.\n<\/p>\n
\t3.The short facts necessary for the disposal of this appeal can be stated
\nthus:\n<\/p>\n
\t(a) P.W.1 is the wife of the deceased Mariappan.  They were living at
\nGandhi Nagar, Sattur.  The accused also belonged to the same place.  They were
\nknown to each other for a longtime. P.W.1 and her husband were selling pigs.
\nSix months prior to the occurrence, five of their pigs were found missing.  They
\nsuspected the act of A-1.  Thereafter, a panchayat was convened in which a
\ndecision was taken that A-1 should pay a sum of Rs.2,500\/- to the deceased.
\nBut, A-1 did not pay.  Hence, there was a quarrel between A-1 and the deceased.
\nFollowing the same, A-1 gave a complaint against the deceased, and the deceased
\nwas also arrested.  He came out on bail.  Two cows of the deceased also died.
\nP.W.1 and the deceased suspected that A-1 would have administered poison to the
\ncows as a result of which they died. A criminal case was also pending against A-
\n1 in that regard.  Thus, the deceased and A-1 were on inimical terms.\n<\/p>\n
\t(b) On the date of occurrence namely 30.8.2005, at about 8.00 P.M., when
\nthe deceased and his wife P.W.1, were returning from a temple in a bicycle, both
\nthe accused waylaid the deceased and P.W.1 in front of the house of one
\nDr.Gnanadurai. Immediately, the deceased got down from the cycle, and he was
\nabout to run in order to escape from the accused.  At that time, A-2 caught hold
\nof the legs of the deceased, while A-1 attacked him with an aruval on the neck
\nand on the wrist.  Immediately, P.W.1 due to fear went over to the house and
\ninformed to P.W.3. P.W.3 wrote the complaint as dictated by P.W.1.  P.W.1 signed
\nthe complaint, which is marked as Ex.P1. They went to the respondent Police
\nStation and gave Ex.P1, the report, to P.W.11, the Sub Inspector of Police, who
\nwas present at the Police Station, at about 8.30 P.M.  On the strength of Ex.P1,
\na case was registered in Crime No.442\/2005 under Sections 341<\/a> and 302<\/a> of I.P.C.
\nThe printed FIR, Ex.P17, was despatched to the Court along with Ex.P1.\n<\/p>\n
\t(c) P.W.12, the Inspector of Police, on receipt of the copy of the FIR,
\ntook up investigation, proceeded to the spot, made an inspection in the presence
\nof witnesses and prepared an observation mahazar, Ex.P10, and a rough sketch,
\nEx.P18.  Then, he recovered bloodstained earth and sample earth from the place
\nof occurrence under a cover of mahazar.  He also recovered other material
\nobjects from the place of occurrence.  Then, he conducted inquest on the dead
\nbody of Mariappan in the presence of witnesses and panchayatdars and prepared an
\ninquest report, Ex.P19.  Thereafter, the dead body was sent to the Government
\nHospital for the purpose of autopsy along with a requisition.\n<\/p>\n
\t(d) P.W.6, the Assistant Surgeon, attached to the Government Hospital,
\nSattur, on receipt of the requisition, conducted autopsy on the dead body of
\nMariappan and issued a postmortem certificate, Ex.P2, with her opinion that the
\ndeceased died of multiple injuries in the neck caused haemorrhagic shock and
\ntransected head.\n<\/p>\n
\t(e) The Investigator came to know that A-1 and A-2 surrendered before the
\nCourt.  As far as A-1 was concerned, an application was made on 12.9.2005, for
\npolice custody.  The same was ordered.  He was taken out and was also
\ninterrogated. A-1 came forward to give a confessional statement voluntarily,
\nwhich was recorded in the presence of witnesses.  The admissible part of the
\nsame is marked as Ex.P4, pursuant to which he took the police party and produced
\nM.O.1, aruval, M.O.2, shirt, and M.O.3, Kaili, which were recovered under a
\ncover of mahazar, Ex.P5. A-1 was sent again for judicial remand.\n<\/p>\n
\t(f) As regards A-2, an application was made on 14.9.2005 for police
\ncustody.  The same was ordered.  A-2 was taken out and interrogated.  He
\nvolunteered to give a confessional statement, which was recorded in the presence
\nof witnesses.  The admissible part is marked as Ex.P20.  He took the police
\nparty and produced bloodstained full arm shirt, M.O.12, and bloodstained dothi,
\nM.O.13, which were recovered under a cover of mahazar, Ex.P21. He was sent again
\nfor judicial remand.\n<\/p>\n
\t(g) All the material objects, recovered from the place of occurrence and
\nfrom the dead body, and the material objects recovered on production by the
\naccused pursuant to the confessional statements, were subjected to chemical
\nanalysis by the Forensic Sciences Department, which resulted in two reports
\nnamely Exs.P15 and P16, the Chemical Analyst’s reports, and Ex.P22, the
\nSerologist’s report.  P.W.13, the Inspector of Police, took up further
\ninvestigation. On completion of investigation, the Investigating Officer filed
\nthe final report before the Judicial Magistrate.\n<\/p>\n
\t4.The case was committed to Court of Session, and necessary charges were
\nframed.  In order to substantiate the charges, the prosecution examined 13
\nwitnesses and also relied on 22 exhibits and 13 material objects.  On completion
\nof the evidence on the side of the prosecution, the accused were questioned
\nunder Sec.313 of Cr.P.C<\/a>. as to the incriminating circumstances found in the
\nevidence of the prosecution witnesses which they flatly denied as false.  No
\ndefence witness was examined.  The trial Court heard the arguments advanced on
\neither side, took the view that the prosecution has proved the case beyond
\nreasonable doubt, found them guilty as per charges except the charge under
\nSec.506(ii) IPC<\/a>, and awarded imprisonment which is the subject matter of
\nchallenge before this Court.\n<\/p>\n
\t5.Advancing the arguments on behalf of the appellants, the learned Senior
\nCounsel Mr.K.Chellapandian would submit that the prosecution rested its case on
\nthe direct evidence by examining three eyewitnesses namely P.Ws.1, 2 and 5; that
\nas far as P.Ws.2 and 5 are concerned, they have turned hostile; and thus, the
\nprosecution had only the evidence of P.W.1; that the evidence of P.W.1 was
\nuncorroborated; that she was the wife of the deceased and hence, interested;
\nthat as far as her evidence is concerned, it is highly unbelievable; that
\naccording to P.W.1, when she was coming along with her husband in the cycle,
\nthey were waylaid by the accused, and the occurrence has taken place; that she
\nhas deposed before the Court that A-2 held the legs of her husband; but, in
\nEx.P1 nowhere it is found so; that according to her, A-1 and A-2 came in a TVS
\n50; but, she has not averred the same in Ex.P1; that according to the
\nprosecution, immediately, after the occurrence, the cycle in which they
\ntravelled, was also damaged; that how the damage had occasioned to the cycle she
\nhas no explanation to offer; that apart from that, the conduct of P.W.1 that she
\ndid not go nearby or take the body or come to the rescue and take him to the
\nhospital or inform to the Police Station and that too, the Inspector’s Office is
\nwithin 100 feet, would go to show that P.W.1 could not have been in the place of
\noccurrence at all; that P.W.1 would say in Ex.P1 that action must be taken not
\nonly against these two accused, but also against others; that what is found in
\nEx.P1 coupled with the evidence of P.W.1 in the cross-examination where she has
\nspoken that apart from these two accused, there are two other accused against
\nwhom complaint was already given, would go to show that only after receiving the
\ninformation as to the death of her husband, she went over there; that yet
\nanother circumstance in the instant case to shake the testimony of P.W.1 was
\nthat though the prosecution claimed that the occurrence has taken place at about
\n8.00 P.M., and the case was registered at 8.30 P.M., the FIR has reached the
\nJudicial Magistrate by 1.00 A.M.; that it is pertinent to point out that the
\nMagistrate’s Court and residence is situated within a furlong from the Police
\nStation; that all would go to show that P.W.1 could not have seen the occurrence
\nat all; that under the circumstances, the lower Court should not have believed
\nthe evidence of P.W.1 and should have acquitted the appellants, but not done so,
\nand hence, it has got to be considered by this Court.\n<\/p>\n
\t6.In support of his contentions, the learned Senior Counsel relied on a
\ndecision of the Apex Court reported in (2008) I MLJ (CRL) 381 (SC) (STATE OF
\nMAHARASHTRA V. RAJU BHASKAR POTPHODE<\/a>).\n<\/p>\n
\t7.The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions made.\n<\/p>\n
\t8.It is not in controversy that the husband of P.W.1 was done to death in
\nan incident that took place on 30.8.2005.  Following the inquest made by the
\nInvestigator, the dead body was subjected to postmortem by P.W.6, the Doctor,
\nwho has given opinion that the deceased died out of shock and haemorrhage due to
\nthe multiple injuries sustained.  The fact that he died out of homicidal
\nviolence was never questioned by the appellant\/accused at any stage of the
\nproceedings, and hence, without any impediment, it could be recorded so.\n<\/p>\n
\t9.In order to substantiate the charges levelled against the accused, the
\nprosecution rested its case on the direct evidence by examining P.Ws.1, 2 and 5
\nas occurrence witnesses, out of whom, P.Ws.2 and 5 have turned hostile.  Hence,
\ntheir evidence was not helpful to the prosecution.  The only evidence available
\nwas that of P.W.1.  P.W.1 was the wife of the deceased.  She was not an injured
\nwitness.  In the case on hand, the evidence of P.W.1 was thoroughly
\nuncorroborated and solitary.  Since she happened to be closely related to the
\ndeceased, her evidence has got to be tested with care and caution.  If it is
\ntested, this Court is afraid whether it could accept her evidence for the
\nfollowing reasons.\n<\/p>\n
\t10.According to P.W.1, she was with her husband when the occurrence took
\nplace.  She has deposed before the Court that they were coming by a cycle; that
\nthe accused were coming in a TVS 50; that they waylaid both of them, and her
\nhusband in order to escape, was about to run; but, A-2 held his legs, and by
\nthat, he facilitated A-1 to attack him with aruval.  Ex.P1 was the earliest
\ndocument, wherein there was no reference either as to the TVS 50 in which the
\naccused came or no whisper about the act of A-2 that he caught hold of the legs
\nof the deceased. According to P.W.1, she was in the occurrence place for a
\nperiod of five minutes even after the accused left the place.  If to be so, it
\nwould be quite natural for the wife of the deceased to go nearby, touch the body
\nor cry; but, she has candidly admitted that she has not done anything.  It is an
\nadmitted fact that the Inspector’s Office is situated within 100 feet from the
\nplace of occurrence.  She has not gone for their help.  She has not even gone to
\nthe Police Station to give a complaint.  But, she has gone over to her place and
\ninformed to others.  It remains to be stated that she gave a detailed report
\nrunning to pages, written by P.W.3.\n<\/p>\n
\t11.Another important fact which goes to the root of the matter, is to
\ndoubt the presence of P.W.1 at the time of occurrence.  At the end of Ex.P1, the
\nreport, she has categorically stated that action must be taken against the
\nappellants and others also.  At the time of cross-examination, she has stated
\nthat she has given a complaint regarding the incident, against four persons out
\nof whom two were the accused.  She has specifically mentioned the names of four
\npersons there, and hence, it also casts a doubt whether Ex.P1 was one prepared
\nby her and given to the police.\n<\/p>\n
\t12.Apart from the above, in the said transaction, the cycle of the
\ndeceased was found damaged.  But, she had no explanation to offer how the cycle
\ngot the damages.  Further, there were seven injuries found on the dead body.
\nAccording to her, A-1 cut her husband only on the wrist and the neck; but,
\ninjuries are found in the ear also.  Thus, she was unable to account for the
\nseven injuries.  All would go to show that whether P.W.1 could have been present
\nat the place of occurrence.\n<\/p>\n
\t13.Added strong circumstance in favour of the accused or against the
\nprosecution is that though the prosecution came forward to state that the case
\nwas registered at about 8.30 P.M., the FIR has reached the Judicial Magistrate
\nat 1.00 A.M. after nearly about four hours.  It is also an admitted position
\nthat the Judicial Magistrate’s Court and residence are all situated nearby to
\nthe Police Station concerned.  This delay would also cast a doubt whether Ex.P1
\ncould have come into existence as put forth by the prosecution.\n<\/p>\n
\t14.In the instant case, the only solitary and uncorroborated testimony
\navailable was that of P.W.1.  In order to sustain a conviction, that evidence
\nmust be cogent and trustworthy, and also care and caution must be exercised.
\nBut, it is not free from doubt. With all these reasonable doubts that are
\nnoticed, this Court is of the considered opinion that it would be highly unsafe
\nto sustain a conviction against the appellants.  Under the circumstances, they
\nare entitled for acquittal giving benefit of doubt to them.  Accordingly, the
\njudgment of conviction and sentence passed by the lower Court, is set aside, and
\nthe appellants are acquitted of the charges levelled against them.\n<\/p>\n
\t15.In the result, this criminal appeal is allowed.  The bail bond executed
\nby A-2, shall stand terminated.  The first appellant\/A-1 is directed to be set
\nat liberty forthwith unless his presence is required in connection with any
\nother case.  The fine amounts if any paid by them, will be refunded to them.\n<\/p>\n
nsv\/<\/p>\n
To:\n<\/p>\n
1.The Principal Sessions Judge
\n  Virudhunagar District
\n\tat Srivilliputtur\n<\/p>\n
2.The Inspector of Police
\n  Sattur Town Police Station
\n  Virudhunagar District
\n  in Cr.No.442\/2005\n<\/p>\n
3.The Additional Public Prosecutor
\n  Madurai Bench of Madras High Court<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mahendran vs State Rep. By on 8 February, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08\/02\/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A.(MD) No.298 of 2007 1.Mahendran 2.Nehru .. Appellants vs State rep. by Inspector of Police Sattur Town Police Station Virudhunagar District in […]<\/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-261927","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMahendran vs State Rep. 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