Annadurai and Muruan vs The State

S. Nagamuthu, J.—The appellants who are the accused 1 and 3 in S.C. No. 161 of 1996 on the file of the learned Additional Sessions

Judge cum Chief Judicial Magistrate, Tuticorin. They stand convicted under Sections 341 r/w 149 and 302 r/w 149 I.P.C and sentenced to

undergo Rigorous Imprisonment for one month u/s 341 r/w 149 I.P.C. and to undergo imprisonment for life and to pay a fine of Rs. 500/- in

default to undergo further R.I for one month u/s 302 r/w 149 by the judgment dated 24.01.2000. Challenging the same, the appellant has come

forward with this appeal.

Before the trial Court, including the appellants, totally there were seven accused. The following charges were framed against them:

Accused Nos. Charges under section

A. 1 and A. 3 148 I.P.C.

A. 2, A. 4 and A. 7 147 I.P.C.

A. 1 to A. 7 341 r/w 149 I.P.C

A. 1 to A. 3 302 r/w 149 I.P.C.

A. 4 to A. 7 302 r/w 149 I.P.C.

The trial court acquitted the accused 2, 4 to 7 of all the charges framed against them. The appellants, who are A. 1 and A. 3 alone have been

convicted and sentenced as aforesaid.

The brief facts of the prosecution case is as follows:

i) P.W. 1 is the sister and P.W. 2 is the daughter of the deceased. The accused and the deceased were neighbours and were residing at

Mudukkalankulam village. P.W. 2 had developed illicit intimacy with the first appellant, as a result of the same, P.W. 2 became pregnant. When

P.W. 2 disclosed the same to the deceased, he requested the first appellant to marry her. But, the fact remains that the second accused by name,

Shanmugathai was already married to the first appellant, and so he refused to marry her. A village Panchayat was convened in respect of the same,

in which, a sum of Rs. 5,000/- was imposed as fine on the first appellant. Thereafter, P.W. 2 was married to the father of the first appellant and at

the time of the said marriage, she was pregnant by six months. P.W. 2 thereafter lived with the father of the first appellant. She delivered a male

child. Since the first appellant had cheated P.W. 2, the deceased got wild against him and there were ill-feelings between him and the first

appellant.

ii) On 21.07.1993 at about 3.00 p.m., the deceased was in a tea shop of one Ramasamy in the same village taking tea. P.W. 1, who is the sister of

the deceased had also gone there to take tea. At that time, all the seven accused came there armed with weapons. The first appellant/first accused

was having aruval and the second appellant/third accused had a velstick. When the deceased started moving towards his house and when he was

nearing the house of one Gunasekaran, all the seven accused waylaid him. The fourth and fifth accused attacked him on his shoulder with hand. At

that time, the second appellant/third accused stabbed him with velstick on the left shoulder. The deceased fell down. Then the first appellant

inflicted a cut on the neck by aruval. But the said attack fell on the neck lightly. The second accused Shanmugathai snatched the arvual from the

hands of the first appellant and by declaring that the deceased should not be allowed to live, inflicted cuts on the neck repeatedly. According to

P.W. 1, the second accused inflicted three cuts whereas, according to P.W. 2, she inflicted ten cuts. Thereafter, all the accused fled away from the

place of occurrence. P.W. 2, who was doing some work in a house near Ramasamy tea shop, on hearing the cry of the deceased, came to the

scene of occurrence and witnessed the occurrence. Apart from P.Ws 1 and 2, one Kumarasamy also witnessed the occurrence. The deceased

died on the spot.

iii) Thereafter, P.W. 1 went to P.W. 11, the Village Administrative Officer and informed him about the occurrence. According to P.W. 11, at

about 3.00 p.m. on 21.07.93, P.W. 1 gave a statement in respect of the murder of the deceased and the same was reduced into writing by him.

P.W. 1 having admitted the contents of the said statement, affixed her L.T.I. Ex. P.1 is the said complaint. He then forwarded Ex. P.1 through his

menial by name Sornamani-P.W. 12 to the police station.

iv) P.W. 13, who was the then Inspector of Police at Nallattinputhur Police Station, received Ex. P.1 from P.W. 12 and registered a case in Crime

No. 162 of 1993 under Sections 147, 148, 341, 323 and 302 I.P.C. at 5.30 p.m. Ex. P.6 is the first information report. He forwarded Ex. P.1

and P.6 to the jurisdictional Magistrate, who in turn, received the same at 11.00 p.m. on 21.07.93. In the complaint, the names of the accused and

their specific overt acts were mentioned.

v) P.W. 17, who was the Circle Inspector of Police, Nalattinputhur, taking up the investigation, visited the spot at 7.30 p.m. and prepared Ex. P.4,

Observation Mahazar in the presence of P.W. 11 and another witness. He also prepared a rough sketch showing the place of occurrence, which is

Ex. P.10. Between 7.30 p.m and 11.30 p.m., he held inquest, during which he examined P.Ws 1 to 4 and few more witnesses. Ex. P.11 is the

inquest report. Then he forwarded the dead body for autopsy with a requisition under Ex. P.2 through P.W. 14.

vi) P.W. 10, Doctor attached to Kovilpatti Government Hospital, on receipt of the said requisition, conducted autopsy and he found the following

injuries on the body of the deceased:

A cut injury on the left side of neck about 18 cm in length extending from the nape of neck to the midline exposing the cut ends of the muscles,

vessels, nerves and archea.

A lacerated injury about 3 cm X 1 1/2 cm on the left shoulder.

A contusion about 8 cm X 5 cm in size over the left scapular region. Hyoid bone was cut.

Ex. P.3 is the Post mortem certificate. The doctor opined that the death was due to shock and hemorrhage due to the injuries sustained.

vii) Continuing the investigation, P.W. 17, examined P.W. 6, P.W. 11 and few more witnesses. He recovered blood stained earth-M.O.5 and

sample earth-M.O.6 under Ex. P.5, Mahazar in the presence of P.W. 11. Then On 22.07.93, he examined P.W. 2, 5, 7, 12, 13 and 14 and few

more witnesses. On information that on 22.07.93, A.1 to A.3 surrendered before the Juridical Magistrate No. II, Tirunelveli, he got custody of the

accused by means of an order of the Court on 27.07.93. On the same day, at about 3.30 p.m., the first appellant volunteered a confession, which

was reduced into writing by P.W. 17 in the presence of witnesses. The admissible portion of the same is Ex. P.12. In the said statement, he had

disclosed that he would identify the place where he had hidden the aruval. At 04.15 p..m, the second accused volunteered a confession a and the

same was also reduced into writing in the presence of the same witnesses. At about 5.00 p.m, the third accused/second appellant volunteered a

confession and the same was also reduced into writing in the presence of the same witnesses. The admissible portion of the same is Ex. P.13. In

the said statement, the third accused/second appellant had disclosed about the place where he had hidden the velstick. In pursuant to the

disclosure statements, the first appellant took P.W. 17 and the witnesses to a place known as Thambothipalam, identified the place and produced

M.O.1 aruval, which was seized under Mahazar Ex. P.14 and the third accused/second appellant also identified the place and produced M.O.2-

velstick, which was seized under Mahazar Ex. P.15. Then the accused 1 to 3 were again sent to judicial remand. On 26.07.93, A.4 to A.7

surrendered before the Judicial Magistrate, Tenkasi.

viii) Continuing the investigation, P.W. 17, examined few more witnesses and also gave requisition to the learned Magistrate to forward the

material objects for chemical analysis. Ex. P.18 is the chemical analysis report and Ex. P.19 is the serology report. On completing the investigation,

he laid charge sheet against all the seven accused on 21.10.93.

The trial Court framed appropriate charges against all the accused as narrated at the beginning of this judgment. Since all the accused pleaded

not guilty, they were put on trial.

On the side of the prosecution 17 witnesses were examined and 19 documents were exhibited and 7 material objects were marked, during trial.

When the accused were questioned u/s 313 Cr.P.C. in respect of the incriminating evidences found against them, they denied the same as false.

They have neither examined any witness nor marked any document on their side.

Having considered the materials available on record, the trial Court acquitted A. 2 and A. 4 to A. 7. Further, the trial Court has found A. 1 and

A. 3, the appellants herein, guilty under Sections 148 and 302 r/w 149 I.P.C. and sentenced them as stated herein above. The appellants have

challenged the same in this appeal.

The learned senior counsel for the appellants would submit that P.Ws 1 and 2 would not have been present to witness the occurrence at all. He

would further submit that since P.Ws 1 and 2 are highly interested in the case of the prosecution and related to the deceased, their evidences

should be very closely scrutinised. If the medical evidence given by P.W. 10, is closely analysed, it would show that the evidences of P.Ws 1 and

2 are highly improbable and the same cannot be given any weightage of. The learned senior counsel would also submit that there is inordinate delay

in preferring the complaint to the police and thereafter, in forwarding the same to the learned Magistrate, which also creates serious doubts in the

case of the prosecution.

The learned senior counsel would submit that though in the evidences of P.Ws 1 and 2 specific overt acts have been attributed for the rest of the

accused, the lower Court has acquitted them, thereby dis-believing the evidences of P.Ws 1 and 2. Since P.Ws 1 and 2 are not fully believable, in

the absence of due corroboration from independent sources, their evidences cannot be believed at all.

Per contra, learned Additional Public Prosecutor would submit that there are no reasons to disbelieve the evidences of P.Ws 1 and 2. He

would submit that they have deposed in a very cogent and natural manner inspiring confidence. He would further submit that the delay pointed out

by the learned senior counsel appearing for the appellant, is not at all material so as to affect the case of the prosecution in any manner. He would

further add that though there are certain contradictions between the evidences of eye witnesses-P.Ws 1 and 2 and the medical evidence, the same

cannot be a ground to dis-believe the evidences of P.WS 1 and 2.

We have considered the rival contentions and also perused the records carefully.

Admittedly, the house of P.Ws 1 and 2 are not situated anywhere near the place of occurrence. P.W. 1 claims to have come to the place of

occurrence when she was returning from her field and P.W. 2 claims to have been present in a house near the tea shop of Ramasamy. The learned

senior counsel would submit that the presence of P.Ws 1 and 2 at the crucial time cannot be true. Though they are chance witnesses, in our

considered opinion, on that score alone, their evidences cannot be rejected. It is a rule of caution that their evidences require very close scrutiny

because they happen to be not only chance witnesses but also closely related to the deceased and highly interested in the case of the prosecution.

If the evidence of P.W. 1 is closely scrutinised, it would show that she has stated that all the seven accused came together to the place of

occurrence forming un-lawful assembly. Further the accused 4 and 5 alone attacked the deceased first with hands. But this part of the evidence of

P.W. 1 has been dis-believed by the lower Court. She has further stated that the second appellant/third accused stabbed the deceased on the left

shoulder once. Then the first appellant cut the deceased on his neck. But the said blow did not fall on the deceased with force. Therefore,

according to P.W. 1, the second accused snatched the weapon from the first appellant and inflicted three cuts on the neck. But P.W. 2 has stated

that the second accused inflicted ten cuts on the neck. Whereas, according to the doctor, P.W. 10, and EX. P.3-Post mortem Certificate, there

was only one cut injury on the neck. Thus, in respect of the overt act attributed to A.1 and A.2, corresponding medical evidence is not available.

But the medical evidence only contradicts the evidences of eye witnesses-P.Ws 1 and 2. Further, according to P.W. 1, in the complaint itself it has

been stated that the injury inflicted on the neck by the first appellant did not fall with force but with light force. That is why, the second accused

snatched the aruval and cut indiscriminately three times on the neck. If this part of the evidence of P.W. 1 and Ex. P.1 are considered, it may be

construed that the injury No. 1 mentioned in Ex. P.13-Post Mortem Certificate, which is a deep cut wound, would not have been caused by the

first appellant at all.

In respect of the overt act attributed to the second appellant/third accused, the learned Additional Public Prosecutor would submit that injury

No. 3, which is a lacerated injury of 3 cm X 1 1/2cm X 1 cm on the left shoulder was the one caused by the second appellant/third accused. The

evidences of P.Ws 1 and 2 would be precise that the second appellant stabbed the deceased with velstick. But, there is no stab wound found on

the body of the deceased. Thus in our considered opinion, the medical evidence does not corroborate the evidences of eye witnesses-P.Ws 1 and

2.

Apart from that, though it is stated that the occurrence had taken place in front of a tea shop of one Ramasmay, which is located at busy area,

no independent witness has been examined except Ramasamy, P.W. 8, who has also turned hostile. Thus in the absence of any independent

evidence, it is very difficult to believe the evidences of P.Ws 1 and 2.

Sofaras P.W. 2 is concerned, as pointed out by the learned senior counsel, her name does not find a place in Ex. P.1. According to her

evidence, after witnessing the occurrence, she went to Thazhaiyoothu village and stayed in a temple overnight and returned to her village only on

the next day. When her father was done to death in such a gruesome manner, had it been true that she witnessed the said occurrence, involving

these appellants and other accused, she would not have gone to a different village for the whole night to stay in a temple. The said un-natural

conduct of P.W. 2 coupled with non-mentioning of her presence in Ex. P.1, would create doubts as to whether P.W. 2 would have been present

at the scene of occurrence. Thus we are not able to believe the evidence of P.W. 2.

P.W. 1 would admit during cross examination that the Village Administrative Officer, and the police arrived at the scene of occurrence

immediately. She would further add, that a complaint was prepared on the spot in the presence of Village Administrative Officer and her L.T.I was

obtained. But the case of the prosecution is that P.W. 1 appeared in the Police station at 5.30 p.m and preferred the complaint. In the light of the

evidence of P.W. 1, as narrated above, it is hard to believe that P.W. 1 had gone to the Police Station at 5.30p.m. to prefer the complaint Ex. P.1.

The learned Additional Public Prosecutor is not in a position to explain as to what had happened to the complaint which was preferred on the spot

as per the evidence of P.W. 1. Thus the earliest information which was reduced into writing on the spot by the police has been obviously

suppressed and instead, Ex. P.1 has been later on prepared and substituted.

Further, P.W. 13 has admitted that the distance between the Police Station and the Court of the learned Magistrate is hardly five kilometers

and there are frequent buses. Had it been true that first information was registered at 5.30.p.m. in the evening , there is no reason as to why the

same had reached the hands of the learned Magistrate at 11.00 p.m. This delay, which remains un-explained also creates doubt in the case of the

prosecution.

The recovery of M.Os 1 and 2 also, in our considered opinion, would not advance the case of the prosecution. Though it is stated that M.O.1

was recovered at the instance of the first appellant, P.W. 1 identified the same as one used by the second accused, Shanmugathai. Further, M.Os.

1 and 2 were not subjected to any chemical examination. There is no explanation as to why these material objects were not sent for chemical

examination, when the other material objects were so sent for chemical examination. Thus, we are not in a position to attach any importance to the

recovery of M.Os.1 and 2 at the instance of these appellants Since there is no clear evidence that these appellants in any manner used them in the

commission of the crime.

As we have held herein above that the evidences of P.Ws 1 and 2 do not pass the test of close scrutiny, in view of the reasons stated above,

we are not able to confirm the findings of the lower Court that these two appellants alone have caused the death of the deceased. In our

considered opinion, the prosecution has not proved the case against these two appellants beyond reasonable doubt and therefore, they are entitled

for acquittal.

In the result, the appeal is allowed. The conviction and sentence imposed by the lower court is set aside. The appellants are acquitted of all the

charges framed against them. The bail bonds, if any, executed by them shall stand cancelled.