Arumugam alias Doss vs State

S.R. Singharavelu, J.—Challenging the judgment rendered by the Principal Sessions Judge, Tirunelveli, Tirunelveli District, dated

07.08.2006 in S.C. No. 45 of 2006, in convicting the appellant/accused for the offences under Sections 341 and 302 I.P.C., and sentencing him

to undergo simple imprisonment for a period of one month for the offence u/s 341 I.P.C. and sentencing him to undergo imprisonment for life and

to pay a fine of Rs. 10000/- (Rupees one thousand only), with a default clause to undergo rigorous imprisonment for a further period of three years

for the offence u/s 302 I.P.C., this appeal has been filed.

The brief facts of the prosecution case are as follows:

(a) The deceased Arumugam and the accused Arumugam @ Doss are owning lands adjoining each other and there was frequent complaint made

by the deceased upon the accused as if the latter committed petty thefts upon the trees in the garden of the deceased. This news was spread in the

village by the deceased and so the accused was insulted and this was the reason for the ill-will that the accused caused in his mind against the

deceased. On the day of occurrence on 30.09.2005 at about 6.00 a.m. when the deceased was going to his garden in a cycle he was waylaid by

the accused by saying that ""why are you spread the news as if I am a thief"" and attacked upon the deceased and cut him with Aruval upon his neck

and other parts of the body and the deceased fell down and died on the spot.

(b) Petchimuthu (P.W. 1), the father of the deceased while going to his garden happened to see the occurrence and upon seeing the same he has

shouted towards Essaki (P.W. 2), his brother whereupon not only Essaki (P.W. 2), but also Maraikan (P.W. 3), have come to the scene of

occurrence and found the injured having succumbed to the same. Petchimuthu (P.W. 1) sent Essaki (P.W. 2) to the village to inform the people.

Santhanam (P.W. 4), wife of the deceased and others came to the scene of occurrence. In the mean time, P.W. 1 left the scene of occurrence and

gone to the Pathamadai Police Station and reached there by 8.00 a.m. and gave a complaint under Ex.P1, which was recorded by P.W. 11, the

Sub-Inspector of Police. Based upon that a case was registered in Crime No. 98 of 2005 for the offences punishable under Sections 341, 302

and 506(ii) of I.P.C. The printed copy of F.I.R. under Ex.P. 10 reached the Magistrate by 11.15 a.m. on the same day.

(c) In the complaint vivid description of the overt acts of the accused were made by Petchimuthu Konar (P.W. 1). In the course of his evidence

also it was said by him that when he went to the garden he saw the accused managed to attack with Aruval upon his son and after seeing that he

alarmed and upon hearing the alarm Essaki (P.W. 2), brother of P.W. 1 was following him in cycle has rushed and found only the dead body in the

scene of occurrence. P.W. 4, wife of the deceased also has spoken to the same, even though she had not seen the occurrence, but subsequently

she came to the scene of occurrence. Maraikan (P.W.3) in the course of evidence did not support the prosecution and turned hostile.

(d) The investigation was done by P.W. 12, the Inspector of Police. He has taken up the investigation at 9.00 a.m. on 30.09.2005 has visited the

scene of occurrence at 9.15 a.m. and inquest was conducted upon the body of the deceased in the presence of Panchayatars. The inquest report

was marked as Ex.P. 12. The photos and negatives from the scene of occurrence were marked as M.O. 8(series). Cycle (M.O.2), Blood stained

earth (M.O. 3), sample earth (M.O. 4) were recovered from the scene of occurrence at 12.30 p.m. under Magazar Ex.P. 3.

(e) The body of the deceased was sent for post-mortem which was later done at 1.40 p.m. on the same day by Dr. Paramasivan (P.W. 10). His

Post-mortem certificate was marked as Ex.P. 9. He found the following injuries upon the body of the deceased:

Cut injury 6x5 cm at the level of right deltoid region;

Defense cut injury at the level of right middle finger extending up to the little finger. The cut portions of lateral 3 fingers are seen separately.

On alignment, it belongs to one and the same individual.

Gaping heavy cut injury 23x5 cm seen from the left side of neck 8 cm above the lateral half of left collar bone. The underlying soft tissues on the

left shoulder found cut along with the head of humerus bone.

Defense cut injury left wrist 8 cm in length; the bones of wrist found cut.

Gaping heavy cut injury 12 x 3 cm upper part of the right side of chest 5 cm below the inner border of right collar bone.

9x4 cm heavy cut injury center of the chest crossing to the opposite side and this injury is close to the previous inj. It is oblique in direction.

Heavy cut injury 7x3 cm seen on the left side of back, 2 cm below the lower border of left shoulder bone.

Gaping heavy cut injury, right side of back, involving the right shoulder joint, splitting the soft tissues and bones of the right shoulder joint.

Cut injury 8x3 cm back of right upper arm;

Multiple heavy cut injuries on the left side of neck, separating the neck from the trunk at the level of C2 vertebra. Irregular cut injuries seen on

the left side of face causing disfigurement of face and cutting the right maxilla and ramus of mandible. The head hangs with a flap of skin and soft

tissues attached to the front of neck. The esophagus, trachea larynx along with the greater vessels of the neck are found cut at site. The margins of

all the cut injuries are clear.

The doctor opined that the deceased would appear to have died of heavy cut injuries in the region of neck.

(f) The accused surrendered on 04.10.2005 before the Judicial Magistrate, Valliyoor, thereafter police custody was taken on 13.10.2005 and his

voluntary confession statement was recorded. The admissible portion of which was marked as Ex.P. 4, in pursuance of which at about 3.00 p.m.

on 13.10.2005 recovery of M.O. 1 was made under Ex.P. 5. The recovered articles were sent for chemical analysis. Analyst report was

subsequently received and marked as Ex.P. 15. Upon recording the statement of witnesses and after completion of investigation, final report was

filed on 08.11.2005.

Before the learned trial Judge, 12 witnesses were examined, 16 exhibits and 8 material objects were marked on the side of the prosecution. On

the side of the defence, no witness was examined and no document was marked.

When the incriminating circumstance was put to the accused, he denied the same and pleaded not guilty. Upon considering the materials

available on record, the learned trial Judge has convicted the appellant/accused for the offences under Sections 341 and 302 I.P.C., and sentenced

him as referred to above.

We have heard the arguments of Mr. V. Kathirvelu learned Counsel appearing for the appellant/accused and Mr. S.P. Samuel Raj, learned

Additional Public Prosecutor appearing for the respondent.

The fateful event in this case had taken place at 6.00 a.m. on 30.09.2005. There was a ill will between the accused and the deceased inasmuch

as the latter spread the news in the village as if the former was committing petty thefts in the garden of the deceased. Therefore when the deceased

was going to his garden on 30.09.2005 at 6.00 a.m. the accused attacked him with aruval (M.O. 1) and severed his head which is injury No. 10 in

the Post-mortem certificate. There was also several omnibus cut all over the body stipulated by the post-mortem certificate which includes the

other injury Nos. 1 to 9. The fatal attack was found as injury No. 10, the severance of the neck. All though three eye witnesses were examined as

P.Ws. 1 to 3, P.W. 2 and P.W. 3 turned hostile and did not support the prosecution, whereupon left only with the evidence of P.W. 1''s eye-

witness, who is none but the father of the deceased. When uncorroborated evidence from interested witness comes, we have to scrutinize it with

care and caution.

The learned Counsel for the appellant in this connection relied on a decision in Anil Phukan Vs. State of Assam, wherein the following

observations were made:

Where the alleged single eye-witness being a close relative of deceased was an interested witness and though alleged to be present at place of

occurrence but did not attempt to save deceased and also his statement about time of occurrence was contradictory to medical evidence, the

testimony of said eye-witness could not be relied upon for conviction of accused. Of course, mere relationship with the deceased is no ground to

discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relationship would be the last

person to spare the real assailant of his relative and implicate a false person. However, the possibility that he may also implicate some innocent

person along with the real assailant cannot be ruled out and, therefore it would not be safe to accept his evidence without some independent

corroboration, direct or circumstantial.

As of all there is omission in the evidence of P.W. 1 in respect of the overt act of the accused which was vividly spoken to by him under Ex.P.

When he was able to say in detail about each and every overt act on the part of the accused in Ex.P. 1 nothing would have prevented him from

further reporting the same in the course of his evidence. On the contrary even though elaboration of overt act of accused was made in Ex.P. 1, the

author of which is P.W. 1, he has not so much descriptively spoken to the same in the course of evidence, excepting the fact that omnibus cut all

over the body was supplied by the accused. This compared details found in Ex.P. 1 makes it comparatively vague and that according to the

learned Counsel for the appellant made a concrete doubt as to whether at all P.W. 1 present in the scene of occurrence. It is true that P.W. 2 is

the own brother of P.W. 1 had followed him and in his evidence even though he turned hostile goes to the extent of fixing the presence of P.W. 1

in the scene of occurrence at 6.00 a.m. on 30.09.2005.

The learned Counsel for the appellant pointed out that the occurrence could not have been taken place at 6.00 a.m. on 30.09.2005 in view of

the features found in the medical evidence. Post-mortem was conducted at 1.40 p.m. on 30.09.2005 as seen from the post-mortem report which

is marked as Ex.P. 9, where it is mentioned that rigor-mortis was found present all over the body. In this connection, as per the Medical

Jurisprudence it is clear that rigor-mortis will start at 3 hours after the death of the person and will present all over the body for another 12 hours

which is hereunder:

Duration : In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor mortis is twenty- four

to forty-eight hours in winter and eighteen to thirty-six hours in summer. According to the investigations of Mackenzie, in Calcutta, the average

duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours. In Colombo, the average duration

is twelve to eighteen hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours

after death, is well developed from head to foot in about twelve hours.

If that is given consideration then it is possible that the occurrence could have happened only at 1.00 a.m. in the early morning on 30.09.2005.

If that is considered so, both P.W. 1 and P.W. 2 were present at the scene of occurrence at 6.00 a.m. could have left only to found out the dead

body which is confirmed by P.W. 2. Yet another factor supporting the above view, the finding of the Post-mortem certificate in the stomach of the

deceased 30 grams partly digested cooked rice particles are found and particularly it was admitted in the course of cross examination of P.W. 1

who said deceased could have taken the food four hours prior to his death. This will probapalise the time of death as only at 1.00 a.m. on

30.09.2005 instead of 6.00 a.m. as projected by the prosecution. On the basis of the scientific evidence available in Ex.P. 9 the time of occurrence

may go to 1.00 a.m. on 30.09.2005 in which event there could not be any eye-witness including P.W. 1. The prosecution also has not ventured to

fix the time of death from P.W. 10, the post-mortem doctor. The grave doubt arises as to the time of occurrence as spoken by P.W. 1. Therefore

the evidence of P.W. 1 could not be safely relied in these circumstances. He being a single interested witness, unless there is some corroboration it

is highly unsafe to base reliance on his evidence to convict the accused.

Hence, this Criminal Appeal is allowed and the judgment passed in S.C. No. 45 of 2006 by the learned Principal Sessions Judge, Tirunelveli,

dated 07.08.2006 is hereby set aside and the accused/appellant is acquitted of all the charges levelled against him by the learned Principal Sessions

Judge, Tirunelveli and the accused is directed to be released forth with, unless his presence is required in connection with any other case.