AI Structured Summary
Not yet generated for this judgment
Judgment
N. Dhinakar, J.—Appellants are accused 1 and 2 in Sessions Case No. 88 of 1989 on the file of the Principal Sessions Judge,
Ramanathapuram at Madurai. They were initially charged by the learned Sessions Judge along with two other accused. The appellants were then
arrayed as A1 and A3 respectively and two other persons Senthamil Selvan and Kalimuthu Vathiyar alias Kalimuthu were arrayed as A2 and A4
respectively. Charges were framed under Sections 120-B IPC and 302 r/w 34 IPC against all the four accused. Senthamil Selvan, A2 in the said
Sessions case, become mentally ill and his case was split up and a separate number was given. Thereafter, the learned Sessions Judge, framed
charges against the appellants, who were arrayed as A1 and A2, as well as against Kalimuthu Vathiyar alias Kalimuthu, who was arrayed as A3.
In this judgment, the appellants will be referred to as A1 and A2 respectively and the acquitted accused, Kalimuthu Vathiyar alias Kalimuthu, will
be referred to as A3 and similarly, Senthamil Selvan, whose case was split up, will be referred to by his name, for the sake of convenience.
The first charge against A1 to A3 was u/s 120-B IPC on an allegation that at about 8.00 p.m. on 25.6.1987, A1 to A3 and the accused
Senthamil Selvan conspired to commit the murder of Nataraja Reddiar S/o of Ramasamy Reddiar and hence, they were liable to be punished u/s
120-B. Under charge No. 2, A1 to A3 were charged u/s 302 r/w 34 IPC on an allegation that at 9.30 a.m. on 27.6.1987, the accused Senthamil
Selvan and A2. each armed with a knife, cut the said Nataraja Reddiar on the back of his chest, shoulder, flank and overhead and that A1 also
stabbed him on his stomach as a result of which, the said Nataraja Reddiar died. The learned Sessions Judge, on the evidence adduced, acquitted
A1 to A3 u/s 120-B IPC and also acquitted A3 u/s 302 r/w IPC. He convicted the appellants/A1 and A2 u/s 302 r/w 34 IPC and sentenced each
of them to suffer imprisonment for life. Hence, the present appeal.
P.W.1 is the niece of the deceased and P.W.2 is distantly related to the deceased. They were residents of Mettukundu, P.W.1 on the date of
incident was 18 years old and has studied upto S.S.L.C. The deceased was a bachelor. P.W.1''s uncle, Arunachala Reddiar. contested the
election for the post of the President of a Panchayat Board and he was opposed in the said election by one Kamipiah Thevar. A1 to A3 as well as
the accused Senthamil Selvan supported Karuppaiah Thevar. The deceased supported Arunachala Reddiar. Karuppiah Thevar lost the election
and ever since that date, the accused were inimical towards the deceased. After the elections were over, the junior paternal uncle of P.W.1. Raju
Reddiar, was murdered and his haystack was also set on fire. The deceased, Nataraja Reddiar. was helping the family of Raju Reddiar in
prosecuting a criminal case. The accused were enraged against the deceased on account of this also. The accused Senthamil Selvan always used to
alter the ridge and on account of this, there used to be disputes between the deceased and the accused Senthamil Selvan.
Two days prior to the date of incident. Nataraja Reddiar was returning from Virudhunagar and A1 to A3 and the accused Senthamil Selvan
accosted him and threatened him saying that he will be done to death in two days. The deceased informed this fact to his brother.
On 27.6.1987, the deceased accompanied by P.W.3, left to inspect his banana garden at about 6.45 a.m. At the garden. A1 to A3 and the
accused Senthamil Selvan were also seen. A3 was heard saying something and P.W.3 told the deceased that they are uttering something against
them. The deceased asked P.W.3 to ignore them. The deceased and P.W.3 thereafter plucked banana flowers and an hour thereafter, the
deceased handed over the banana flowers to P.W.3 and asked him to go home telling him that he will return to the house after some time. P.W.3
went to the house and handed over the banana flowers to P.W.1. P.W.1 questioned P.W.3 as to the whereabouts of her uncle to which, P.W.3,
replied by saying that he will reach the house some time later. P.W.3 left for his house to take his food. P.W.1 waited for the arrival of the
deceased for an hour, but the deceased did not come home. P.W.1 thought that the deceased must be served breakfast and so, carrying breakfast
in a tiffin carrier, left for the banana garden and on the way. met P.W.2. She requested P.W.2 to join her. Both P. Ws. 1 and 2 were proceeding
to the banana garden through a pathway. As they were proceeding from north to south and turned towards east, they heard the deceased saying.
Nagappa, please do not stab me"" and ""Senthamil Selva. I will prostrate before you"" P.W.1 ran to the place from where she heard the voice of her
uncle As she entered the banana garden, she saw A1 stabbing the deceased and her uncle falling down. She raised an alarm that the deceased had
been stabbed. The accused ran away from the scene taking the weapons with them. P.W.2 who was also present along with P.W.1, on hearing
the voice of the deceased, sat down on the footpath and did not follow P.W.1. When she sat down, she saw A2 and the accused Senthamil
Selvan stabbing the deceased on the back of his chest repeatedly. She also saw A1 stabbing the deceased on the stomach and the deceased falling
down. When P.W. I went near the deceased, he was breathing hard. P.W.1 then requested P.W.2 to go to the village and bring male members
and by the time the villagers gathered, her uncle passed away.
P.W.1 accompanied by her father, went to the house of the Village Administrative officer. P.W. 5. and gave a complaint about the incident.
P.W.5 asked P.W.1 to write a complaint and accordingly, she wrote a complaint and the same stands marked as Ex.P-1 in the case. P.W.5
requested P.W.1 to copy the said complaint so that the same can be sent to the court. Accordingly P.W.1 copied Ex.P-1 in another paper and the
same is marked as Ex.P-2 in the case. After Exs.P-1 and P-2 were written by P.W.1, P.W.5 prepared Exs.P-3 and P-4, his reports, and sent
Exs.P-1 and P-3 to the police station and Exs.P-2 and P-4 to the Court through his Thalayari, Raniasamy.
P.W.10. the Sub-Inspector of Police Vachakarapatti Police Station, on receipt of Exs.P-1 and P-3. registered a case in Crime No. 106 of
1987 u/s 302 r/w 109 IPC. He prepared printed First Information Report and Ex.P-16 is a copy of the same. Exs.P-1, P-3 and P-16 were
despatched by P.W.10 to the court. The higher officials were also informed.
P.W.11. the Circle Inspector of Police, Virudhunagar Rural, took up investigation in the case, on receipt of the F.I.R. at about 1.00 p.m. He
reached the scene of occurrence aid at 2.00 p.m. prepared an observation mahazar. Ex.P-5, attested by P.W.4 and the Thalayari, Ramasamy. He
also drew a rough sketch, Ex.P-17. He seized M. Os. 1. 2. 3. 4 and 5 series under a mahazar Ex.P-6 attested by the same witnesses at 2.30 p.m.
At 2.45 p.m. he seized MO.6, the blood-stained earth, and M.O.7, the sample earth, under a mahazar Ex.P-7 attested by the same two witnesses
In between 3.30 p.m. and 5.00 p.m. he conducted inquest over the dead body of Nataraja Reddiar in the presence of panchayatdars during
which, he questioned and recorded the statements of P. Ws.1 to 3 and 5, and prepared Ex.P-18, the inquest report. The body was sent with a
requisition for post-mortem through a police constable.
P.W.7. the Civil Assistant Surgeon attached to Government Hospital. Virudhunagar, conducted autopsy on the body of Nataraja Reddiar at
about 6.30 a.m. on 28.6.1987 and found the following post-mortem injuries:
Incised wound horizontal 1"" x 1"" x 3/4'''' on the right side of the abdomen near the umbilicus protruding fat (torn).
An incised horizontal wound 1"" x 3/4"" 1/4"" on the back just above the scapula.
Incised wound horizontal 1"" x 1/2"" x 1/4"" at the lower side of the right scapula
An incised wound 1 x 1/2"" x 1/4"" on the right inter-scapular region at back.
An incised horizontal wound 1"" x 1/2"" x 1/4"" in size on the back 1"" medial to injury No. 4.
A stab injury (vertical) 1 1/2"" x 1"" x 3"" on the (torn) region 1 1/2"" lateral to the midline which penetrates and making injury above 1/2"" x 1/4"" x
1/4 on the posterior surface of the left kidney near (torn) end.
An incised vertical wound 1 1/2"" x 1"" x 1/4"" on the left side 2"" below the injury No. 6.
An incised vertical injury 1 1/4"" x 1"" x 1/4"" in size on the left lumbar region 1/4"" below injury No. 7.
An incised vertical injury 1"" x 1/4"" x 1/4"" above the midline on the right side 3"" above the buttock.
Incised scapula (?) wound 1"" x 1/2"" x 1/2"" on the right rib.
An incised horizontal wound 1"" x 1/2"" x 1/4"" in size 1 1/2"" lateral to injury No. 10.
An incised wound 1"" x 1/2"" x 1/4"" (horizontal) on the right side of the chest near the axilla right side (?)
An incised vertical wound 3"" x 1 1/4"" skin & tissue deep on the right side on the occipital region.
An incised vertical wound 1"" x 1/4"" skin tissue deep on the left side of the head 3"" above the left ear
An incised wound about 1/2"" x 1/2"" skin and tissue deep on the left side of the forehead.
An incised vertical wound 1"" x 1/2"" x l/4"" on the frontal aspect of the right upper arm 2"" above the right elbow.
An incised vertical wound 1/4"" x 1/4"" skin and tissue deep on the left elbow on the back.
An incised vertical wound 1/4"" x 1/4"" skin and tissue deep on the right elbow in front.
A stab wound 1 1/4"" x 1"" x 2 1/2"" on the right scapula region which pass vertically down and penetrating apex of the right lung and cause a cut
injury about 1/4"" depth.
An incised vertical injury 1"" x 1/2"" x 1/4"" on the lateral aspect of the right leg just below the right knee joint
A stab injury 1 1/4"" x 1"" x 3"" in size on the left scapular region which passes vertically and penetrates the apex in the left side cause a cut on
the left apex 1/4"" depth.
A stab injury about 1 1/2"" x 1"" x 2 1/2"" in size near the left supraclavicular region near the left shoulder which passes vertically downwards and
penetrates and causing a cut on the lateral border of the upper lobe of the left lung.
Incised wound about 1"" x 1/2"" skin and tissue deep on the left supraclavicular region 1/2"" medial to injury No. 22.
She issued Ex.P-11, the post-mortem certificate, with her opinion that the deceased would appear to have died of shock and haemorrhage due to
multiple injuries some of which were on the vital organs.
Meanwhile, P.W.11 continued his investigation and questioned and recorded the statements of other witnesses. On 1.7.1987, he arrested A2
and A3 at 1.00 p.m. in the presence of witnesses and when questioned, A2 came out with a statement. The admissible portion of the said
statement is marked as Ex.P-8 in the case. In pursuance of the said statement, A2 took the police party to a pumpset belonging to one Thangavel
Naicker, from where he produced M.0.8, a ''soon'' knife, and M.0.9, a sheath, which were seized under a mahazar Ex.P-9 attested by witnesses.
A2 and A3 were later sent to the court for remand. He questioned P.W.4 on 27.6.1987. The material objects seized in the case were sent to the
court with a request to forward them for analysis and the court by sending them, obtained Ex.P-14, the report of the chemical analyst, and Ex.P-
15, the report of the serologist. After completing the investigation, a final report was filed against the accused on 1.6.1988.
When questioned u/s 313 Cr.P.C., the accused denied their complicity.
The fact that Nataraja Reddiar died on account of homicidal violence is proved through the evidence of the post-mortem doctor, P.W.7, who
issued Ex.P-11, the post-mortem certificate, P.W.7 has, in her evidence, stated that the deceased would appear to have died of shock and
haemorrhage on account of the injuries to the vital organs especially to the lungs. The accused also do not dispute the said fact. We hold that
Nataraja Reddiar died on account of homicidal violence.
P. Ws. 1 and 2 were examined by the prosecution as eye-witnesses. P.W.1 is the niece of the deceased and P.W.2 is distantly related to him.
We will now have to analyse the evidence to find out whether their evidence can be accepted and acted upon to confirm the conviction of the
appellants. Before we analyse the evidence of the eye-witnesses, we wish to consider the circumstances under which Ex.P-1 came to be laid by
P.W.1 with P.W.5, the Village Administrative Officer.
Learned counsel appearing for the appellants/accused contends before us that Exs.P-1 and P2 could not have been given by P.W.1 at the time
alleged by her and that the occurrence could not have taken place at the time alleged by the prosecution and further, P. Ws.1 and 2 could not have
witnessed the occurrence. We see some force in the said contention.
According to P.W.1, the deceased left the house at about 6.15 a.m. accompanied by P.W.3 to pluck banana flowers. She has further
deposed that one hour thereafter, P.W.3 alone returned bringing with him banana flowers and when asked about the whereabouts of the deceased,
P.W.3 told her that he will reach the house a little later. P.W.3 also deposed to the effect that on the morning of 27.6.1987, he went along with the
deceased to banana garden where they plucked banana flowers and the deceased asked him to hand over the flowers to P.W.1 saying that he will
go over to the house a little later. According to P.W.1, she waited for the arrival of her paternal uncle for more than an hour and since he did not
reach home, she left for the banana garden carrying his breakfast in a tiffin carrier. According to her, on the way, she saw P.W.2 and both of them
proceeded to the banana garden and when they were on a footpath near the banana garden, they heard the deceased pleading and asking A2 not
to stab him and also telling the accused Senthamil Selvan that he will prostrate before him. She has further deposed that she immediately rushed to
the spot and found A1 stabbing the deceased and A1 to A3 running from the scene of occurrence. P.W.2 has stated that on hearing the noises,
she did not follow P.W.1., but sat on the footpath and saw A2 and Senthamil Selvan stabbing the deceased repeatedly on various parts of the
body.
According to P.W.1, after Nataraja Reddiar breathed his last, she went to the house of P.W.5, the Village Administrative Officer, and lodged
a complaint, Ex.P-1, and at the request of P.W.5, she copied the said compliant and the same is marked as Ex.P-2 in the case. According to
P.W.5, after Exs.P-1 and P-2 were given by P.W.1, he prepared his reports Exs.P-3 and P-4 and sent Exs.P-1 and P-3 to the police station and
Exs.P-2 and P-4 to the court through his Thalayari, Ramasamy. P.W.10, the Sub-Inspector of Police, has in his evidence, deposed that the
reports, Exs.P-1 and P-3 were received by him from the Thalayari at about 12.30 p.m. and thereafter, he registered a case in Crime No. 106 of
1987. If this evidence of the witnesses is to be accepted, then the Thalayari, who had taken Exs.P-1 to P-4, after handing over Exs.P-1 and P-3 at
the police station, would have gone to the court to hand over Exs.P-2 and P-4 to the Magistrate as directed by P.W.5. It is to be remembered at
this stage that P.W.10 received Exs.P-1 and P-3 at 12.30 p.m. which means that the Thalayari would have left the police station after 12.30 p.m.
for the court to hand over Exs.P-2 and P-4. If so, the said Thalayari could not have come back to the scene before 2.00 p.m. since the distance
between the police station and Virudhunagar is about 15 KMs. Strangely, Ex.P-5 the observation mahazar, prepared at 2.00 p.m., Ex.P-6 a
mahazar prepared at 2.30 p.m. by P.W.11 for the recovery of M. Os. 1 to 5 and Ex.P-7 a mahazar prepared at 2.45 p.m. for seizure of M.O.6
the bloodstained earth and M.O.7 the sample earth, are seen attested by the said Thalayari. If a complaint was really laid by P.W.1 with P.W.5
and the same was despatched through the Thalayari, it is impossible for the Thalayari to be present at the scene at 2.00 p.m. for him to attest all the
three documents. Realising this difficulty, the prosecution by an ingenuine method, brought out through the evidence of P.W.5 that after the
mahazars were prepared, le questioned the Thalayari as to whether he handed over Exs.P-2 and P-4 to the court and the Thalayari replied by
saying that though he has handed over Exs.P-1 and P-3 at the police station, he has not handed over Exs.P-2 and P-4 to the court and he would
do the same immediately thereafter. At this stage, it is to be remembered that the explanation offered through P.W.5 that he questioned the
Thalayari who gave an explanation, is not found mentioned in the statement of P.W.5 recorded by the investigation officer, P.W.11, when he
conducted investigation. The present explanation can only be an afterthought since the said explanation is given in court for the first time.
Further, there is another significant aspect which has to be taken into consideration. According to P.W.10 on receipt of Exs.P-1 and P-3, he
registered a case and prepared printed F.I.R. and Ex.P-16 is a copy of the same. All the three exhibits, namely P-l, P-3 and P-16 were
despatched to the court and a perusal of the original documents shows that all the three documents were received by the Magistrate at 5.00 p.m.
under his initials. If Exs.P-1, P-3 and P-16 were received at 5.00 p.m., Exs.P-2 and P-4, the other two documents, which were handed over to
the Thalayiri, Ramasamy by P.W.5, should have reached the Magistrate later since, according to the prosecution, the Thalayari did not take these
documents to the court after he handed over Exs.P-1 and P-3 at the police station and returned to the scene to attest the mahazars. A perusal of
the original documents, Ex.P-2 and P-4 shows that these two documents were also received by the Magistrate at 5.00 p.m. under his initials. The
fact that all the documents, namely Exs.P-1, P-2, P-3, P-4 and P-16, were received by the Magistrate at 5.00 p.m. indicates that they could not
have been despatched by two different authorities at two different points of time. Or otherwise, Exs.P-1, P-2 and P-16 must have been received
by the Magistrate much earlier and Exs.P-3 and P-4 must have been received by him later in point of time since the Thalayari was in the village
attesting the mahazars. The fact that all the documents were received by the Magistrate at the same time indicates that the complaint, Ex.P-1 and
the copy thereof Ex.P-2, could not have been given by P.W. I in the manner alleged by the prosecution. This shows that the prosecution had come
out with a false version on a very vital aspect. It is also to be remembered at this stage that P.W.1 has admitted in cross-examination that phone
facility was available in the village at the post office. It is possible that after the dead body was traced, someone must have informed the police
authorities and the police authorities after reaching the scene and after much deliberation could have prepared the reports.
Keeping the above aspect in mind, we will now analyse the evidence of P. Ws.1 and 2 to find out whether their evidence can be accepted as
stated earlier. P.W.1 was able to witness the occurrence only because she went to the banana garden carrying with her breakfast for her uncle.
She has admitted in cross-examination that after seeing the incident, she threw away the tiffin carrier on the pathway near the scene and ran away.
The said tiffin carrier was neither seized by the investigating agency nor was it found noted in the observation mahazar, Ex.P-5, as articles lying at
the scene of occurrence. The absence of tiffin carrier at the scene creates a doubt about the present explanation that P.W.1 went to the banana
garden and witnessed the occurrence.
At this stage, we may also refer to the post-mortem certificate, Ex.P-11, wherein it is noted by the doctor that the small intestines of the
deceased had semi-solid fluid with partially digested food particles. The fact that the post-mortem doctor found partially digested food particles in
the stomach indicates that the present version given by P.W.1 that she left for banana garden carrying breakfast for her uncle cannot be accepted
since the deceased must have had his breakfast before he left the house, as could be seen from the notings of the doctor in the post-mortem
certificate.
Similarly, the evidence of P.W.2 is not supported by the medical evidence though she claims that on hearing the noise, she sat on the footpath
and saw the accused Senthamil Selvan and A2 stabbing the deceased. The post-mortem doctor found only four stab injuries and the other 19
injuries are two dimensional injuries which means that they are only incised injuries and not stab injuries. If the deceased was repeatedly stabbed
by the accused Senthamil Selvan and A2, the doctor would have noticed only stab injuries and not incised injuries. Further, it is also strange that
P.W.2 did not follow P.W.1 since P.W.2 is older in age than P.W.1 and in the normal course, P.W.2 would not have allowed P.W.1, a girl of 18
years, to go to a place from where distressing voices were emanating. Further, as the banana garden was dense, P.W.2 could not have also seen
the occurrence from the place where she sat since, even according to the prosecution, the deceased was lying five rows away from the footpath in
the banana garden. We are unable to accept the evidence of P. Ws. 1 and 2, more so when they had come out with a false version that the first
information statement was given by P.W.1 to P.W.5 at 9.30 a.m.
On the discussion made above, we are of the view that the accused are entitled to the benefit of doubt and the same is given to them. In the
result, the appeal is allowed and the accused are acquitted.