Babu and Others vs State of Tamil Nadu

M. Karpagavinayagam, J.—In S.C.No. 71 of 1988 on the file of the Court of Sessions Judge, North Arcot at Vellore, the appellants 1 to 3

were convicted u/s 302, I.P.C. and the appellants 4 and 5 were convicted for the offence under Sections 302 read with Section 34,I.P.C. and

sentenced to undergo imprisonment for life for having committed the murder of one Punniyanathan on 10-8-1987 at Ranipet.

There are totally 14 accused and except the appellants A 1 to A5 all the other accused were acquitted. The facts leading to the conviction could

be summarised as follows :-

(a) The deceased one Punniyanathan joined as Manager in Appollo Tubes Ltd. at Ranipet in August 1987. There are two Unions. One is run by

the accused and the other union is supported by the Management in which PW2 was taking active part. The management did not recognise the

union represented by the accused. The first appellant was terminated from service on 5-12-1984. The second appellant was dismissed on 24-4-

1984. The third appellant was dismissed on 2-12-1983. The 4th appellant was dismissed on 3-12-1984. In the election held to the union on 4-7-

1987 two persons belonged to the labour union to which accused belonged, were elected and the rival union which supported the management

was defeated.

(b) One Ravi PW3, a foreman working in the factory got married on 15-7-1987. The reception was arranged on 10-8-1987 at Ranipet. PW1

who was working in the factory was helping in the reception. PW2 also attended the reception at about 7.15 p.m. At the time of reception, he saw

the accused 1 to 5 near the house of PW3. At that time, the deceased Punniyanathan came in a car. The car was parked in the maidan situate near

to the house of PW3. The deceased went inside the venue of reception and attended the function.

(c) PW2, after attending the function was about to start from the venue. At that time, he saw Punniyanathan coming to the venue of the reception

for attending the same. After 10 minutes, the deceased came out of the venue of the reception along with PW1. When he was about to enter into

the maidan to take his car along with PW1, A1 to A5 suddenly appeared near the scene. Accused No. 4 pressed his hands on the mouth of the

deceased preventing him from shouting. Accused No. 5 caught hold of the deceased from behind. Accused 1 to 3 with aruval and knife inflicted

injuries indiscriminately on the deceased. On receipt of the injuries, the deceased fell down and died on the spot. After the occurrence was over, all

the accused took to their heels.

(d) PW 1 rushed to the Police Station, Ranipet and gave a report Ex. P1 at 8.30 p.m. to Sub-Inspector PW22, who in turn registered the case in

Cr. No. 86 of 1986 for the offence u/s 302, I.P.C. PW22 then sent intimation to PW 23, Inspector of Police. On receipt of the same, PW 23

reached the spot at 9.15 p.m. He prepared Ex. P20 Observation Mahazar and Ex. P 34 rough sketch and conducted inquest between 10.30 p.m.

to 1.00 p.m. During the course of inquest, he examined P.W.s. 1, 2, 3 and 5. The inquest report is Ex. P. 35. After inquest was over, the body

was sent for Post-Mortem.

(e) P.W. 13 the Doctor attached to Government Hospital, Wallajhapet conducted the postmortem over the dead body of Punniyanathan at 8 a.m.

on 11-8-1987. He found the following external injuries :-

A cut injury (hack injury) actuate beveled on the lower occipital and nape of the neck with crescenteric loss of skin tissue at the middle of the

wound 7 cm x 3 cm All the muscles of the nape of neck was seen cut. The vertebral column was seen cut at the level of C-3 and C-4 level and the

spinal cord has been transacted at this level.

A ''T'' shaped cut (hacked) injury on the front parietal region, horizontal limb 5x2 cm x scalp thickness, vertical limb 7 x 2.5 cm x scalp

thickness. The underlying bone has been cut for 1/2 cm thickness.

A ''Y'' shaped cut (hacked) wound on the parietal occipital region-short limb 7 cm x 2 cm x 1 cm Longer limb 13 x 1.5 x 1 cm. The underlying

bone has also been injured and along the line of the wound.

A ''V shaped cut (hacked) injury on the left parietal region 6 x 1 x 1 cm and the other 7.5 x 1 x 1 cm

A cut (hacked) injury 5 x 1 x 3A cm on the middle of the forehead and hair line region. The underlying bone has been cut for entire length of the

wound for a depth of 0.25 cm

A cut (hacked) injury 8 x 1.5 x 5 cm depth at the superior aspect of wound and 1/4 cm on the lower aspect. Tailing of the wound is seen.

Wound is present on the right temple and extending on the lower part of the hollix of right pinna. The underlying bone is completely fractured.

An incised wound (elleptical) stab injury 3 x 3/4 x 1/2 cm on the left temporal region.

An abrasive incised wound 6 cm x 0.25 cm x skin thickness on the anterior aspect of the lower third of right thigh.

An elliptical incised wound 4 x 1 x 1.75 cm just above the left lateral epicondylar region of left fore arm.

An incised wound 1.5 x 1/2 x 1/2 cm just above the left elbow region.

Two small abrasive contusions bluish ecchymotic each 2x1/2 cm skin depth in left arm region.

An incised wound with tailing 7 x 0.25 x skin depth on the left shoulder region.

An elliptical stab injury with tailing 2.5 x 1/2 x 7.25 cm on the left posterior subcostal region.

A beveled cut injury 4.5 x 1/2 cm x skin depth on the left side of the chin.

An elliptical stab injury 2.5 x 1.5 x 3 cm on the superior aspect of the left shoulder.

An incised tailed wound 8x1/2 cm x skin depth on the coronal plant of the shoulder posterior to wound No. 15.

An actuate tailed incised wound 16 x 3/4 x 1/4 cm and skin depth on the right supra-scapular region.

An incised tailed wound 10 x 1/4 cm x skin depth on the right supra-scapular region intersecting wound No. 17.

A tailed incised wound 3 x 1/4 cm skin depth about 2 cms lateral to wound No. 18.

A tailed incised wound 10 x 1/4 cm x skin thickness on the right deltoid region.

An incised wound 9 x 1/4 cm x skin depth 4 cms below wound No. 20.

Contused tailed wound 11x1 cm x skin depth 2.5 cm below wound No. 21.

An elliptical tailed stab injury 2.5 x 0.75 x 5.5 cm on the right upper lumbar region. Tailing is present on the superior aspect of wound for 5

cms.

An elliptical tailed stab injury 2 x 3/4 x 7.5 cm on the posterior left iliac crest region just lateral to the midline.

P.W. 13 gave opinion in the post-mortem certificate that the deceased would appear to have died due to shock and haemorrhage due to multiple

injuries and resultant fractures. The post-mortem certificate is Ex. P. 19.

(f) On 26-8-1987 A-1 was arrested and M.O.I knife was recovered. On 16-9-1987 A-2, A-4 and A-5 were secured in the police custody and

M.O.2 was recovered from A-2. Thereafter all the accused were sent for judicial custody. After finishing investigation, on 18-10-1987 PW 23

filed a charge sheet against A-1 to A-14 for the offences under Sections 120B, 147, 148 and 302 r/w 149, I.P.C.

During the course of trial, the prosecution witnesses, PW1 to PW23 were examined, through whom Exs. P1 to P37 were filed and M.Os. 1 to

29 were marked on the side of the prosecution. On the side of the defence, Exs. D1 to D4 were marked. When the accused were questioned u/s

313, Cr.P.C. they denied their complicity in the offence and stated that a false case was foisted against them, in view of the rivalry between the two

Unions.

The trial Court after taking into consideration the entire materials concluded that the case was proved only against the appellants 1 to 5 and

convicted them for the offences referred to above. However, the other accused were acquitted, since there are no sufficient materials to show that

they involved in the offence to commit the murder of the deceased.

Mr. N.T. Vanamamalai, the learned senior counsel for the appellants, while attacking the impugned judgment, would take us through entire

evidence and contend that the conviction imposed upon the appellants by the trial Court merely on the basis of the evidence of PW2 could not be

sustained in view of the fact that the deposition of PW2 does not inspire confidence and there are several suspicious features, which would reveal

that the said witness was speaking falsehood, in order to support the management, as he had always been supporting the management in so many

other cases, by being a stock witness giving evidence supporting the case of the management.

He would further contend that the records, which have been concocted and produced as Exs. P15 and P15(a) to show that PW2 had obtained

permission from the management to attend the marriage reception and then in pursuance of the said permission, he attended the said reception, in

which the murder had taken place, would themselves show that PW2 would not have obtained such a permission and consequently, there would

not have been any possibility for PW2 to see the occurrence, which took place at 7.40 p.m. near the venue of the reception.

In reply to the contentions urged by the learned senior counsel for the appellants, Mr. N.R. Elango, the learned Government Advocate with

vehemence pointed out various portions of the evidence let in by PW2 and also the reasonings given by the trial Court in the impugned judgment to

establish that the prosecution has proved the case as against the appellants and submitted that no interference is warranted in the well-reasoned

impugned judgment.

We have given out anxious though to the rival contentions urged on either side. We have also carefully scrutinised the evidence let in by both

sides.

At the outset, we shall mention that the evidence of PW2 on whose deposition the entire case is depending upon, does not appear to have ring

of truth, in view of several suspicious features. As such we are unable to place reliance upon the evidence let in by PW2. The reasons for holding

such a view are as follows.

The complaint Ex. P1 in this case was lodged by PW1, who is also a worker under the management. Though in the complaint, he mentioned

about the participation of the appellants in the commission of crime, he did not make any reference about the presence of PW2 at the time of

occurrence. PW1, while deposing in Court had gone back from his statement Ex. P-1 by stating that the entire contents of the complaint given by

him are false and that the same was prepared by him and presented to the police only under compulsion of the police. Therefore, he was treated as

hostile. However, he was cross examined by both the public prosecutor and the counsel for the appellants. Even in the deposition, both in chief as

well as cross-examination, he did not make a mention about the presence of PW2 at the time of occurrence.

Though PW2 was examined during the course of inquest, which was done between 10.30 p.m. and 1 p.m. on 10-8-1987, the inquest report

reached the Magistrate only at 11 a.m. next day. In the meantime, as admitted by PW2 and PW3, the Investigating Officer, the dog squad was

informed and dog was brought. Under these circumstances, the statement given by PW2 Nithiyanandam which reached the Magistrate at 11 a.m.

next day, has got to be cautiously looked into.

In the cross-examination, PW2 would admit that he did not inform the police that he obtained permission to attend marriage reception from

Punniyanathan, the deceased in the factory at 6.30 p.m. on the date of occurrence. Though, PW2 would state that he had stated so in his 161

statement and came out of the factory premises at 6.30 p.m., in the chief, he would state that he obtained permission at 6 p.m. by getting the out-

pass signed by higher officials and that the said out-pass was handed over to the Security Officer, who was standing at the entrance. This aspect of

the evidence has been introduced by the prosecution, in order to establish that during the relevant time PW2 was not working in the factory and he

was present in the venue of the reception, where the occurrence had taken place.

The prosecution examined PW9 and PW10, in order to show that at the relevant time, PW2 went for attending the reception of PW3 after

getting four hours permission from the officers concerned in the factory. But a reading of the deposition of PW9 and PW 10 would reveal that they

did not actually support the case of the prosecution as projected to PW2.

There are two documents, namely, Exs. P14 and P15, which were marked through PW9 and PW 10. Ex. P14is the out pass. Ex. P15 is the

register showing the details about the persons going out of the factory premises after obtaining permission. PW9 even in the chief examination

would state that he signed Ex. P14, but he did not know as to who filled up the columns found in Ex. P14, the out-pass. Though in the chief

examination he stated that at 6 p.m. PW 2 was given permission to come outside for four hours on 10-8-1987, he would however, state in the

cross-examination that PW2 went outside at 6 p.m. on getting the permission, but came back immediately after 10 minutes. Therefore, Exs. P14

and P15, which were filled up to support the case of PW2, cannot be given any importance, in view of the clear admission made by PW9 that

though permission was granted, PW2 went outside and came back immediately after 10 minutes and he was in the factory till 8.45 p.m.

Admittedly, the occurrence had taken place at 7.40 p.m.

PW 10 is the Security Watchman. He would also refer to Exs. P14 and P15. He would admit that serial No. 29 is mentioned in Ex. P15. The

said serial number has not been mentioned in Ex. P14 out-pass. According to PW2, the working time of the duty is between 2 p.m. and 10 p.m.

and if he obtained permission for four hours, out of eight hours, namely between 2 p.m. and 10 p.m., it could be considered to be half a day leave.

A perusal of SI. Nos. 25 to 28, mentioned in Ex. P. 15 would make it clear that PW 2 applied for half a day leave and left the factory premises at

6.10 p.m.

Similarly, SI. No. 29, which relates to PW2 also would make it clear that he left the premises only at 10 p.m. as per the entry. But however, it

was mentioned only as a permission and not as a half a day leave. As a matter of fact, PW 10 would admit that if there is a permission sought by

the worker, it has to be written in the Register as to for how many hours the permission is to be granted. Admittedly, all these details of the hours

are conspicuously absent in Ex. P15(a).

One more suspicious feature, which is to be noticed is this. According to PW10, No. 55 mentioned over the out pass Ex. P14 would relate to

the page number of the register Ex. P15. Curiously, page Nos. 55 and 56 are not available in the register. Moreover, it is admitted that the said

entry was made by one Srinivasan. The said Srinivasan was not examined. Unless it is established through him that the entry relating to the time at

which PW2 left the premises as mentioned in page 57 as 6.10 p.m. is with reference to PW2, it cannot be said that PW2 left the premises at 6.10

p.m.

The non-availability of pages 55 and 56, though the said pages have been referred to in Ex. P14 and the absence of SI. No. 29 contained in

register Ex. P15 relating PW2 would go to show that the prosecution has not clearly established that PW2 left the factory premises at 6.10 p.m. In

the absence of those materials, the theory of defence that PW2 left the premises at 5.30 p.m. and came back at 6.10 p.m. itself cannot be ruled

out.

Moreover, PW9, who is the time keeper in the factory, namely, Appollo Tubes Ltd, even at the time of deposition would clearly say that PW2

was present in the factory between 6.10 p.m. and 8.30 p.m. No doubt, it is true that PW9 was treated as hostile during the course of cross-

examination. But that does not mean that we cannot place reliance on the said evidence, more particularly when PW9 would admit even in the

chief examination that he was not able to know as to who filled up Ex. 14, in which he has signed.

A reading of the deposition of PW2 would also go to show that he would not have been present at the scene at the time of occurrence. It is the

statement of PW2 that he went to attend the reception and after attending the same, he took the cycle in order to leave the place and at that time,

he happened to see the deceased coming in a car, that the deceased after parking the car entered into the venue of the reception and that PW2

saluted him and then he was waiting till the deceased coming out.

Once PW2 attended the function and was about to leave the place, in his cycle, there is no reason as to why he was waiting for some more

time for deceased, to come out of the premises. This also, in our view, would create a doubt as to whether PW2 would have been present at the

relevant time at the scene. It may be that PW2 after obtaining permission at 5.30 p.m. from the management attended the reception and then left

the place within a short time. But, certainly it cannot be said, in view of the above reason that he was present at the place of occurrence at the

relevant time.

Moreover, PW2 would state that there were six or seven tube lights burning near the place of occurrence. This is not in consonance with the

observation Mahazar prepared by PW23. Even in the deposition, PW23 would state that there were only 2 or 4 tube lights burning, that too, 30

feet away from the place of occurrence. It is also admitted by PW23 that the petromax light was brought for the purpose of conducting inquest.

So, this would show that there would not have been sufficient lights at the scene of occurrence to enable the witnesses to see how the occurrence

had taken place and who were all the culprits, participated in the incident.

Admittedly, PW2 is the person belonged to the Union, which supported the management from the beginning. PW2 also admitted that he had

given evidence in criminal cases as well as departmental proceedings, on behalf of the management against the opposite union to which the accused

belonged. It is an admitted fact that the union to which the accused belonged had won in the election, which was held very recently, i.e. on 4-7-

1987, just one month prior to the date of occurrence. Moreover, there is no material to show that there was immediate motive for these appellants

to attack the deceased since all the appellant A-1 to A-4 were dismissed three years prior to the date of occurrence. So far as A-5 is concerned,

he was not at all dismissed. Admittedly, he was in service on the date of occurrence.

In these circumstances, it cannot be stated that there was sufficient motive for the appellants to attack the deceased. Moreover PW2 would

state that just prior to the time of occurrence, he saw all the accused including the appellants attending the reception, which is also, in our view, is

quite artificial. Had the appellants planned to commit murder of the deceased in front of the venue of the reception, they would not have shown

their presence to others.

One more important circumstance which has to be taken note of is this. A-3 was arrested on 23-8-1987. On his arrest his diary M.0.21 was

seized. A perusal of the diary would show that upto 22-8-1987 A-3 had written the daily happenings in the diary. In the relevant date 11-8-1987,

he had stated that the entire area became panic because of the unfortunate incident, which took place on the night of 10-8-1987 and so, he had left

for Chennai. This also makes us to feel that A-3 would not have participated in the occurrence. The other writings made on the subsequent dates

would also show that he had gone to various places including his relative''s house and finally, he was arrested on 23rd August 1987.

Under these circumstances, we are unable to accept the case of the prosecution, which is mainly based upon the evidence of PW2 who cannot

be considered to be a truthful witness.

Therefore, the conviction and sentence are liable to be set aside. Accordingly, the same are set aside. The appellants are acquitted. The

Criminal Appeal is allowed.

It is now brought to our notice that A-5 already died during the pendency of the appeal, i.e. on 17-01-1999. So, the appeal stands abated in

respect of the 5th appellant.