Chinnadurai, Oorkavalan and Velayutham (a) Pambu Velayutham vs State

M. Karpagavinayagam, J.—The appellants 1 to 3 were convicted in S.C. 195/87 on the file of I Additional Sessions Judge, Tirunelveli for the offence u/s 302 read with 34 of the Indian Penal Code and sentenced to undergo life imprisonment. Hence, this appeal.

The factual matrix are as follows:

The deceased in this case is Muniasamy, the brother of P.W.1 Marimuthu and P.W.3 Narayanan. They are residing in Thalaipannai village. The deceased, prior to the date of occurrence, was employed under one Vinayaga Nadar in his toddy shop. The first appellant Chinnadurai was having a taste shop selling sundal, vadai, patani, etc. to the customers who come to the toddy shop. The deceased obtained a loan of Rs. 50/- from the first appellant Chinnadurai. Despite repeated demands for repayment of the said loan, the deceased did not repay the same. Therefore, there was misunderstanding between them. P.W.2 Mandiramurthy, the relative of the deceased, is also residing at Thalaipannai village. On 20.7.1986 the deceased Muniasamy and P.W.2 Mandiramurthy went to see second show cinema in Sri Murugan Theatre situate at Athur. After the show was over both of them came back home. It was at about 2.00 a.m. on 21.7.1986 and they were going along the cart pathway near Therkuathur kulam. At that point of time, all the three appellants appeared at the scene and waylaid the deceased. The first appellant Chinnadurai asked the deceased to pay back the loan amount immediately or else, there would be serious consequences. The deceased objected to the manner of his asking for the repayment of the loan amount. There was a wordy quarrel. Then the second appellant exhorted saying that they would not talk to him any more, as he was not able to pay back the loan amount and that they would kill him in that place itself. Thereafter, the first appellant with the stick beat the deceased therein inflicted injury on the right eye. On receipt of the said injury, the deceased sat down and at that time, all the three appellants with sticks began to beat the deceased indiscriminately. P.W.2 on seeing the occurrence tried to intervene by objecting to that act. However, all the three threatened him saying that he would also be attacked. Therefore. P.W.2 took to his heels and hid himself near the toddy shop. After the victim was beaten, all the three dragged the body of the victim and threw the body into the channel. Thereafter, they disappeared from the scene.

P.W.2 went to P.W. 1 the brother of the deceased and informed him about the incident at about 5.00 a.m. Then P.W.1 alongwith one Balu went to the scene and found the deceased with injuries already died. Then, at about 3.45 p.m. P.W.1 went to the Village Administrative Officer, P.W.5 and gave a complaint. At about 6.00 p.m. P.W.5 recorded the statement from P.W.1. Ex.P-1 is the statement. Ex.P-4 is the carbon copy. Then, they went to the scene and saw the dead body and prepared Yathasth Ex.P-5. Thereafter. Exs.P-1 and P-5 were sent to Arumuganeri police station through the Thalayari Sulu Thevar. Exs. P-6 and P-4 were sent through Thalayari to the Magistrate at Trichendur.

P.W.8 the Head Constable on receipt of Ex.P-1 through Thalayari registered the case in Cr. No. 326/86 u/s 302 of the Indian Penal Code. Ex.P. 15 is the printed first information report. Through, P.W.9 Constable all these documents were sent to the Court, as well as to the Higher Officials.

P.W.9 went to Inspector of Police P.W. 10 and gave the documents. From there, he went to Srivaikundam and handedover the documents to the DSP as well as SP. Thereafter, he reached Trichendur at about 8.45 p.m. and handedover the documents to the Magistrate. Ex.P-16 is the passport given by P.W.8 to P.W.9.

On 21.7.1986, P.W. 10 the Inspector of Police took up the investigation at 9.50 a.m. and came to the scene. He prepared Ex.P-7 Observation Mahazar. Ex.P. 17 the rough sketch and recovered MOs 5 and 7 the blood stained earth and M.O.6 sample earth under Ex.P-8. He conducted inquest between 11.30 a.m. and 1.30 p.m. and examined P.Ws 1 and 2. Ex.P-18 is the inquest report. Thereafter, the dead body was sent to the doctor for post mortem.

P.W.4 the Doctor attached to Kayalpattinam Government Hospital commenced post mortem at about 2.30 p.m. on 21.7.1986 and found the following injuries:

Extemal Injuries:

Abrasion 15 � 15 cm in right lower chest front and right upper abdomen.

Abrasion 10 � 10 cm in left costal margin and left upper abdomen.

Abrasion 3 � 3 cm in right cheek with contusion 16 � 5.5 cm in front of right ear lobe, right temporal area, right half of face and right side of neck.

Abrasion 4 � 2.5 cm tip, alanasi of nose and above right half of upper lip.

Abrasion 6 � 5 cms in and around right eye.

Abrasion 3 � 1 cm in right frontal area

Abrasion 2 � 1 cm in left cheek with contusion 10 � 8 cm around it.

Abrasion 6 � 4 over in and around left eye.

Laceration 2 � 1 cm � muscle deep in left angle of mandible.

Contusion 4 � 4 cm over right nipple area Dissection of Injury'' No. 4 a Sub-cutaneous Haematoma 15 � 4 cm in right temporal area right half of face and right side of neck.

b. Fracture right ramus of mandible seen. Dissection of Injury No. 9 a Sub-cutaneous haematoma 6 � 3 left half of face

b. Fracture left ramus of mandible seen. Dissection of thorax a. Subcutaneous haematoma 12 � 5 cm underneath injury No. 10. b. Fracture 3-6 right ribs. Injury 1/2" thick.

P.W.4 the Doctor gave opinion that the deceased would appear to have died of shock and haemorrhage due to injuries to right lung (injury no. 10) and fracture of mandible 12-18 hours prior to the post mortem.

On 29.7.1986, P.W. 10 at about 7.30 p.m. arrested A-3 opposite to Arumughaneri railway station and in pursuance of his voluntary confession, the admissible portion of which is marked as Ex.P-9 the sticks M.O.3 series used for the commission of the offence by all the appellants were recovered under Ex.P.10 Athakshi. On 8.8.1986 at about 8.00 p.m., P.W. 10 arrested A-1 after he was discharged from the Head Quarters Hospital at Tuticorin. In the meantime, A-2 surrendered before the Magistrate at Tirunelveli. Thereafter, on 10.10.1986 he sent the material objects for chemical analysis through Court under Ex.P. 11. On 17.2.1987, he filed chargesheet against the appellants for the offence referred to above.

During the course of the trial. P.Ws 1 to 10 were examined, Exs. P-1 to P-18 were filed and M.Os 1 to 10 were marked on the side of the prosecution. When the appellants were questioned u/s 313 Cr.P.C. they would simply state that they did not participate in the occurrence and on the instructions of one Thangaraj, A-1 was attacked by the persons set up by him and then A-1 got himself admitted in the hospital and A-2 and A-3, since they belong to Nadar Sangam, were fassely implicated in this murder case.

On taking into consideration, the entire materials the trial court concluded that the prosecution proved its case beyond doubt as against the appellant and therefore, appellants 1 and 2 were convicted for the offence u/s 302 read with 34 IPC and third appellant was convicted u/s 302 IPC and to undergo the sentence of life.

Being aggrieved over the conviction and sentence, the appellants have filed this appeal.

Mr. G. Krishnan, learned senior counsel appearing for the appellant, would press into service two important factors, in order to make this Court to hold that the prosecution case was collapsed in entirety due to incurable infirmities. Firstly, according to him, there is abnormal delay in lodging the first information report to the police station, as well as the first information report in reaching the Court. There is not only .unsatisfactory explanation by the Constable who was examined to show that he went and handedover the documents to the Magistrate, but also some of the features, though available in his evidence, would make it clear that the said explanation is false. Furthermore it is contended that though the occurrence had taken place at 2.00 a.m. and the documents prepared by P.W.5 the Village Administrative Officer were sent through Thalayari Sulu Thevar at 11.00 a.m. itself they had reached the Magistrate only at 8.45 p.m. on the said date. Virtually, there is no explanation for this delay and Sulu Thevar, who is an important witness and who is expected to explain this delay has not been examined. Secondly, the sole eye witness, who is P.W.2, and the relative of the deceased had not come forward to help P.W.1 to accompany him to the scene and in giving report either to the Village Administrative Officer or to the police. Moreover, the unnatural conduct shown by P.W.2 as is noticed in his evidence placed before the Court also would go to show that P.W.2 would not have been the eye witness and as such, P.W.2 was set up by the prosecution to foist a false case against the appellants, who are admittedly, inimically disposed of towards the prosecution party.

12-A. Per contra, Mr. N.R. Elango, learned Government Advocate, in justification of the impugned judgment, would point out various portions of the evidence of the police officers who have attempted to explain the delay in first information report reaching the Court and the evidence of P.W.2 who speaks about the occurrence, and also would contend that once the evidence of P.W.2 is believed, even assuming mat there is some delay, the said factor would not be sufficient to throw out the entire prosecution case.

We have carefully considered the rival contentions made on either side and given our anxious thoughts over the submissions made by them.

On a meticulous scrutiny of the materials placed before this Court, we have no difficulty in coming to the conclusion that the prosecution has not come with clean hands. In our view, the ocular testimony of P.W.2 cannot at all be believed, in view of the un-natural conduct and abnormal features that we could see in his evidence. Moreover, though the occurrence had taken place at 2.00 a.m. the first information report reached the Magistrate only at 8.45 p.m. In the absence of any acceptable explanation, we cannot also rule out the possibility, as correctly stated by Mr. G. Krishnan, learned senior counsel for the appellants, of fabricating this document belatedly. The entire study of the records placed before the Court would go to show that the prosecution has not only miserably failed to establish the case, but also has attempted to create false story to foist a case against the appellants. To arrive at such a conclusion, we are giving the following reasons:

The motive aspect is being spoken to by P.W.3. P.W 3 Narayanan is the brother of the deceased. According to P.W. 1, as he has stated in Ex.P-1 and the deposition, three days prior to the date of occurrence, P.W.3 was threatened by the appellants 1 and 2 that unless the amount of Rs. 50/- is paid back to A-l Muniasamy, the brother of P.W.3 would be done away with. But the evidence of P.W.3 would show that he deposed before the Court that the alleged threatening by the accused took place on 18.6.1986 i.e., nearly one month prior to the date of occurrence. Admittedly, even as per the evidence of P.W.3 he did not care to give any complaint with reference to the threatening incident either to the Village Administrative Officer or to the police. He would also admit that a case is pending against him, in which A-3 was alleged to have been attempted to be killed by P.W.3 by means of a revolver. Therefore, this would make it clear that there is enmity between P.Ws 1 and 3 on one part and the accused on the other part. In view of the above situation, we are able to hold that this could be the motive, which is so flimsy, for the occurrence that took place on 21.7.1986. Ofcourse, it is true as pointed out by the learned Government Advocate that when the eye witness is reliable, the aspect of motive becomes insignificant. Therefore, the entire case would depend upon the evidence of P.W.2 who is a sole eye witness in this case.

Let us now come to the conduct of P.W.2. As pointed out by the learned senior counsel for the appellants, apart from the fact mat there are various inconsistencies between the statement given by him to P.W. 10 and the deposition given before the Court, we would be able to notice various suspicious features in his evidence relating to the occurrence. P.W.2 would state that in his presence all the three appellants attacked the deceased with Ooni Kambu. This Ooni Kambu was not mentioned in the first information report and in the statement given by P.W.1 on the basis of the information given by P.W.2. Since there are injuries which are abrasions, P.Ws.1 and 2 have now introduced saying that Ooni Kambu was used by the accused for attacking the deceased. Whatever it is, it shall be noticed that the victim was attacked by all the three persons. We are at a loss of understand as to how P.W.2 kept quiet without preventing those people from attacking the victim, especially when he has admitted that he is one of the accused in a murder case in which eight persons were done away with. Not only that, he is a witness in several cases and also has been convicted u/s 75 of the City Police Act. Therefore, we are not able to believe his version that on his being threatened by the accused he ran away from that place and hid himself near the toddy shop. Leaving alone mat, if the victim was dragged to channel and put there and after the accused left, P.W.2, who is a close relative to the deceased, would have gone near the body of the victim, in order to know whether he is alive or not. He did not do so. Instead, he directly went to his house and only at about 5.00 a.m. he went to P.W. 1 and informed him. Even thereafter, he did not choose to accompany P.W.1 to show the scene place. He never cared to inform to any one. Subsequently, he would admit in the cross examination mat he neither went to the Village Administrative Officer nor to the police station to give report about the incident and as per records, even he did not care to accompany P.W.1 to anyone of the place. The very agonising feature in this case is that P.W.2 was examined during the course of inquest between 11.00 a.m. and 1.30 p.m. This is the statement given by P.W. 10 the Inspector of Police. This would show that he was not at all available either at the time of giving report or at the time of examining the witness during the course of inquest. In this context, we have to see one another aspect. Even according to prosecution, A-1 was attacked by other persons at about 8.00 a.m. on 21.7.1986 including P.W.2. A-1 was admitted in Tuticorin Hospital from where the police received intimation. In respect to the said attack, a case was registered, in which P.W.2 is one of the accused. Therefore, we cannot brush aside the submission of the learned senior counsel for the appellants that P.W.2 would not have been available at the time of examination during the course of inquest, since he would have absconded because of the registration of the case against him. In this situation, the delay of the first information report in reaching the Court assumes significance.

The occurrence took place at 2.00 a.m. P.W.5 received information at 5.00 a.m. and recorded the same at 6.00 a.m. The report had been received by P.W.8 the Head Constable at 7.45 a.m. According to him he immediately despatched the records through P.W.9. Though, according to P.W.8 the first information report was received at 7.30 a.m. Ex.P-16 the passport given by P.W.8 to P.W.9 and other documents have been received by P.W.9 the Constable at 8.30 a.m. It cannot be denied that all these documents, including the inquest report which had been prepared at 1.30 p.m. has been received by the Magistrate only at 8.45 p.m. That too, P.W.7 the "Magistrate Clerk would admit that these documents have been handedover to the Magistrate in the presence of Thalayari. The said Thalayari has not been examined. P.W.5 would say that these documents have been sent at 11.00 a.m. to the Magistrate. P.W.8 would say that the documents have been sent to the Magistrate at 8.30 a.m. as per Ex.P-16. But, there is no explanation on the part of the Village Administrative Officer for examining the Thalayari as to why such delay caused in Exs.P-4 and P-6 reaching the Magistrate at 8.45 p.m. P.W.5 would admit that there are frequent buses for every 15 minutes. Besides that, P.W.9 would state that he went to scene place and handedover the first information report to him (P.W.10) and thereafter, he went to several places for handing over the documents and thereafter, he went to the Magistrate at 8.45 p.m. and handed over the documents. This explanation, in our view, is artificial. When the evidence of P.W.8 and Ex.P-16 clearly show that he was directed to contact the Magistrate immediately and handover the documents, there is no reason as to why he should go to other places and went to the Magistrate in the night. In our view, in order to cover up the delay, P.W.9 has come forward with this explanation.

One other feature we have noticed in this case is this. Both the Office of the Inspector and Court are situate at Tiruchendur. P.W.9 must have gone to Thiruchendur immediately and handed over the first, information report and other documents to the Magistrate and then should have gone to the scene place. It is admitted by P.W. 10 that he received wireless message at about 8.30 a.m. and came to Therkuathur through Arumuganeri police station. If that is so, there is no reason as to why he did not go to Arumughaneri police station to receive the report copy. Therefore, this explanation given by P.W.9 is not only unsatisfactory, but also in our opinion that a false explanation has been given by him in a bid to explain the delay. It is most unfortunate on the part of P.W.9 to state during the course of deposition thus:

If it is to be accepted, there is no necessity for examing P.W.9 at all.

This Court in Murugan v. State by Inspector of Police, Ottapidaram (1993 L.W.(Crl) 90) and Nalli v. State (1993 L.W.(Crl) 155 and Meharaj Singh (L/Nk.) Vs. State of U.P., has held that unexplained delay in lodging the first information report as well as reaching the Court would any way affect the prosecution case. In the instant case, we are not able to place any reliance upon P.W.2. We are bound to hold that the delay has not been properly explained particularly. Sulu Thevan who handedover the document at 8.30 p.m. to the Village Administrative Officer and who is a material witness for explaining this situation has not been examined.

Learned Government Advocate would cite Ram Jag v. State of U.P. (1974 SCC (Crl) 370), Sanganabasappa B. Kaligonnavar v. State of Karnataka (1994 SCC (Crl) 727 and Anil Phukan v. State of Assam (1994 L.W.(Crl) 13 to say that unless there is indication that delay has been used for confabulation and concoction of the case, the entire prosecution case cannot be thrown out. But, in the instant case, we are of the view that P.W.2 has been set up as a witness to give false version against the appellants. As rightly held in Anil Phukan v. State of Assam (Supra), when a single eyewitness is not found to be wholly reliable, it is not safe for the Court to act upon the same to base conviction on the appellants. So, in view of the above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt and as such, the appellants are entitled to the benefit of doubt.

In the result, the criminal appeal is allowed. The conviction and sentence imposed on the accused/appellant are set aside.

The bail bonds, if any, shall stand cancelled.