Aathivelu vs State by, Inspector of Police

M. Chockalingam, J.—Challenge is made to a judgment of the learned Sessions Judge, Karur District made in S.C. No. 91 of 2007 dated 29.02.2008, whereby the appellant/accused stood charged and tried under Sections 302 and 506 (Part II) IPC, and on trial found guilty u/s 302 IPC and awarded life imprisonment with a fine and default sentence, but he was acquitted of the charge u/s 506 (Part II) IPC.

The short facts that are necessary for the disposal of this appeal can be stated as follows:

a) The deceased-Vijaya @ Vijayalakshmi was the wife of the accused/appellant. The accused has an elder brother by name Karupannan. They were all residing in Pattavarthi Village within the jurisdiction of the respondent-Police Station. The accused/appellant was suspecting the fidelity of his wife, the deceased, that she had intimacy with his brother Karupannan. On 17.07.2007, at about 5.00 p.m., P.W.1-Rani and her daughter-in-law P.W.2-Sarasu were proceeding towards a railway track for attending nature''s call. At that time, they heard a distressing cry "Save me" from the house of the accused, situate nearby. Immediately, P.Ws.1 and 2 entered into the house of the accused and found the accused attacking the deceased with a stick. Immediately, P.Ws.1 and 2 questioned him. At that time, he replied to them that it was a family matter and they should not interfere. After saying so, he dashed the head of the deceased on the wall. He also threatened P.Ws.1 and 2 that he will murder them if they reveal the incident outside. Thereafter, P.Ws.1 and 2 returned to their house. At about 12.00 midnight, when P.W.5, the husband of P.W.2 came to the house, both P.Ws.1 and 2 narrated the occurrence to him. Then, on the next day morning, that was on 18.07.2007, they went to the house of the accused and found the dead body of the deceased, but the accused was not found.

b) P.W.1 immediately proceeded to the respondent-Police Station where P.W.14-Inspector of Police was on duty. He received Ex.P1-Complaint from P.W.1 at 9.00 a.m. on the strength of which a case came to be registered in Crime No. 574 of 2007 u/s 302 of the Code. Ex.P9-Express F.I.R. was despatched to the Court and the copies were sent to the higher-ups.

c) Thereafter, at about 10.30 a.m., P.W.14 proceeded to the place of occurrence, made an inspection and prepared Ex.P5-Observation Mahazar and Ex.P10-Rough Sketch. Then, he conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P11-Inquest Report. Thereafter, he sent the dead body of the deceased to the Government Hospital, Kulithalai for the purpose of conducting autopsy, under a requisition marked as Ex.P2.

d) On receipt of Ex.P2, P.W.9-Doctor attached to the Government Hospital, Kulithalai, conducted autopsy on the dead body of the deceased and issued Ex.P4-Post Mortem Certificate, wherein he opined that the deceased died out of shock and haemorrhage due to skull bone fracture and haemotoma of cerebral hemisphere about 12 to 14 hours prior to autopsy. After completion of the post mortem, M.Os.4 to 6 were recovered from the dead body of the deceased by P.W.12-Head Constable and the same were handed over to the Investigator under Ex.P8-Special Report. Thereafter, the Investigator arranged for taking photographs. P.W.11-Photographer took photographs of the place of occurrence as well as the dead body of the deceased. M.O.2 series and M.O.3 series are the photographs and negatives respectively.

e) Pending the investigation, the accused was arrested on 19.07.2007 at 7.30 a.m. When he was enquired, he came forward to give a confessional statement and the same was recorded in the presence of witnesses. The admissible portion of the confessional statement of the accused is marked as Ex.P6. On the basis of the confessional statement given by the accused, M.O.1-Stick was recovered under a cover of Ex.P7-Seizure Mahazar. Thereafter, the Investigator sent all the material objects recovered, to the concerned Judicial Magistrate Court. He also sent the viscera of the dead body under a requisition marked as Ex.P12 followed by another requisition under Ex.P13 by the Judicial Magistrate Court, to the Forensic Sciences Department for chemical examination, which resulted in Ex.P3-Viscera Report. Thereafter, the accused was sent for judicial remand.

f) On completion of the investigation, P.W.14 filed a charge sheet against the accused under Sections 302 and 506 (Part II) IPC on 10.08.2007 before the concerned court, which in turn committed the case to the Court of sessions and necessary charges were framed.

g) In order to substantiate the charges, at the time of trial, the prosecution examined 14 witnesses and relied on 13 exhibits and 6 material objects. On completion of the evidence adduced on the side of the prosecution, the accused was questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. On the side of the defence, D.Ws.1 and 2 were examined. After hearing the arguments of the counsel and looking into the available materials, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt insofar as the charge of murder u/s 302 IPC is concerned and accordingly, awarded the punishment as referred to above. Insofar as the charge u/s 506 (Part II) IPC is concerned, the Trial Court acquitted the accused/appellant. Hence, this Criminal Appeal at the instance of the accused/appellant.

Advancing arguments on behalf of the accused/appellant, the learned Counsel would submit that in the instant case, the prosecution, though examined number of witnesses, namely, P.Ws.3, 4, 6, 7 and 8, all of them have turned hostile, except P.Ws.1 and 2, who were examined as eye-witnesses. P.W.2 is the daughter-in-law of P.W.1. According to P.Ws.1 and 2, when they were proceeding towards a railway track to attend the nature''s call, which is situate nearby the house of the accused, they heard a distressing cry; that they entered into the house of the accused where the accused was attacking the deceased with a stick and when they questioned him, they were threatened by the accused and thereafter, immediately they left the place. Even though they witnessed the accused dashing the deceased''s head on the wall, they left the place, and they again went to the spot on the next day morning and found the dead body. Pointing to the testimonies of P.Ws.1 and 2, the learned Counsel would urge that P.Ws.1 and 2 have candidly admitted that the marriage between the accused and the deceased-Vijayalakshmi was an inter-caste marriage and for the past 13 years, P.Ws.1 and 2 were not in talking terms with the accused/appellant and under such circumstance, according to the counsel, P.Ws.1 and 2 could not have entered into the accused''s house or questioned the accused about his attack on the deceased.

Added further the learned Counsel for the accused/appellant that, if really P.Ws.1 and 2 had seen such an occurrence, they would have informed the same to their neighbours or relatives or to the Police, but they have not done so. He further submitted that though in the chief examination, P.W.2 claimed that the occurrence was informed to P.W.5, her husband, on the date of occurrence itself at 12.00 midnight, in the cross-examination, she has candidly admitted that her husband came to the house only on the next day noon. Therefore, this would clearly indicate that they would not have informed the incident to anybody, as they could not have seen the occurrence at all. If really P.Ws.1 and 2 had seen such an occurrence, they would have informed the same to the neighbours, relatives or Police, but they have not done so. Therefore, according to the counsel, it is highly artificial and they could not have seen the occurrence at all, and hence, no credence could be attached to their evidence.

Added further the learned Counsel for the accused/appellant that even though the case was registered at 9.00 a.m., the F.I.R. reached the Court only at 1.10 p.m. when the Judicial Magistrate Court is situate just opposite to the Police Station, and thus, there was a delay of more than four hours and this delay remained unexplained on the side of the prosecution. Therefore, according to the learned Counsel, all would go to show that the prosecution''s story could not be believed, but the Trial Court has taken an erroneous view. Therefore, according to the counsel, the accused /appellant is entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.

It is not in controversy that after the inquest made by the investigator, the dead body was subjected to autopsy by P.W.9-Doctor, who gave a categorical opinion that the deceased died out of shock and haemorrhage due to skull bone fracture and haemotoma of cerebral hemisphere about 12 to 14 hours prior to autopsy. The fact that the deceased died out of homicidal violence was never disputed by the accused/appellant before the Trial Court and hence the Trial had no legal impediment in recording so.

In order to substantiate that it was the accused/appellant who committed the crime, the prosecution examined P.Ws.1 and 2 as eye-witnesses. P.W.2, admittedly, is the daughter-in-law of P.W.1. The claim of P.Ws.1 and 2 that when they were crossing the house of the accused, they heard a distressing cry and that they got inside the house and they found the accused/appellant attacking the deceased and also dashing her head on the wall, and when they questioned him, he threatened them, is highly artificial for two reasons. Firstly, P.Ws.1 and 2 have candidly admitted that for the past 13 years from the time of inter-caste marriage between the accused and the deceased, they were not in talking terms and under such circumstance, the claim by them that they got into the house of the accused and questioned him, cannot be accepted. Apart from that, if really they had seen the occurrence, immediately, they would have informed the same to the relatives or neighbours or to the Police Station, but they have not done so, and on the contrary, P.W.2 would claim that when they were in their house, P.W.5, the husband of P.W.2, returned home at 12.00 in the night hours and at that time, immediately they informed the matter to him. Even then, they did not take any steps to go and see what had actually happened after the occurrence, though the house is situate nearby. It is pertinent to note that P.W.2 has candidly admitted in her cross-examination that P.W.5, her husband, came to the house only on the next day noon. The silence on the part of P.Ws.1 and 2 even after seeing the incident in which the accused dashed the head of a lady on the wall, would clearly cast a doubt on their testimonies.

The contention of the learned Counsel for the accused/appellant is fortified by the following two decisions of the Hon''ble Supreme Court:

1) Surinder Singh v. State of Punjab (1989 SCC (Cri) 649), and

2) State of Maharashtra v. Raju Bhaskar Potphode (2008) 1 SCC (Cri) 19.

The above two judgments of the Hon''ble Supreme Court deal with the silence on the part of the witnesses, which have got to be followed in the instant case. In the instant case, the silence on the part of the so-called eyewitnesses for more than a day after seeing such an incident, would cast a doubt about their testimonies. Apart from the evidence of P.Ws.1 and 2, the prosecution had no evidence to offer.

It is also pertinent to note that, at the earliest, the charge sheet was laid u/s 302 and also u/s 506 (Part II) of the Code on the allegation that the accused has threatened P.Ws.1 and 2 at the time when he was questioned by them, but the Trial Judge acquitted the accused in respect of charge u/s 506 (Part II) IPC, as he was not ready to believe that part of the case.

As regards the comment made by the learned Counsel for the accused/appellant that F.I.R. though came to have been registered at about 9.00 a.m., has reached the Court at 1.10 p.m., the Court is unable to agree with that contention, as the prosecution examined P.W.13-Head Constable, who had categorically stated that he was waiting in the Court since the Judicial Magistrate was conducting enquiry and after he raised from the seat, it was handed over and thereafter it was received by the Court. Thus, the delay has been properly explained by P.W.13. Under such circumstance, this Court is unable to find any delay in the F.I.R. reaching the Court.

The prosecution, rested its case only on the direct evidence of P.Ws.1 and 2. If the evidence of P.Ws.1 and 2 have itself become doubtful, it would be highly unsafe to rely on their testimonies, and thus it cannot be stated that the prosecution has brought home the guilt of the accused/appellant beyond any reasonable doubt. Hence, the judgment of the Trial Court has got to be made undone by upsetting the same.

Accordingly, the Criminal Appeal is allowed and the judgment of the Trial Court is set aside and the accused/appellant is acquitted of the charge levelled against him. The appellant/accused is set at liberty and he is directed to be released forthwith unless his presence is required in connection with any other case.