Etican vs Nallathamby and Others

S. Sardar Zackria Hussain, J.—This revision is filed by the defacto complainant against the acquittal of the respondents / A-1 to A-4 in

respect of all the charges, viz., offence u/s 302 I.P.C. against A-1 and for offences under Sections 302 read with Section 34 and 201 I.P.C.

against A-1 to A-4 on the file of the Principal Sessions Judge, Namakkal, in S.C. No. 35 of 2003 as per judgment dated 30.6.2003.

The facts that led to the filing of this revision are as follows:

(a) P.W.1 Ettikan is the father of the deceased Mani and P.W.2 Kalaiyarasi is the wife of the deceased and they are closely related to P.Ws. 3 to

P.W.4 Chockalingam, who is an agriculturist, is doing lorry business and P.W.5 is doing rice business. P.Ws.1 to 5, deceased Mani and the

accused are known to each other and P.W.6 is the wife of A-3. A-1 is having poultry shed near Thangayee temple at Periyapatty and the

deceased Mani, P.Ws. 1 to 6 and the accused are the residents of Periapatty village. The deceased was a Kabadi player and he was living with his

wife along with his parents in the same building in different portions. Since the deceased Mani was without any job, he used to drive the car of A-1

and he also used to consume liquor along with A-1 to A-4. As he was under ayurvedic treatment for nearly one year, he stopped drinking and

subsequently, again he started drinking along with the accused.

(b) In the Kabadi game on 16.01.2001 arranged in celebration of the Pongal festival, the deceased Mani and his team won the game, which was

over by 5.30 P.M. and at about 7.30 P.M. on the same day, P.W.4 went to the poultry shed of A-1 to see A-3, where A-3 and his wife were

residing in a portion, and he found his wife P.W.6 and when he enquired her about the whereabouts of A-3, he was informed by her that A-1 to

A-4 and the deceased were consuming liquor at the end of the poultry shed and when P.W.4 went to the said place, he found A-1 to A-4 and the

deceased Mani consuming liquor. They also indulged in wordy quarrel. P.W.4, after informing P.W.6, went back to his lorry workshop at

Namakkal. The deceased Mani did not turn up to his house on the evening of 16.01.2001 and on the next day also and having been informed so

by P.W.2 at 8.00 A.M. on 17.01.2001, P.W.1 searched of his son in all the places and made enquiries to P.W.3 about his whereabouts but all

ended in vain. On 18.01.2001 at about 5.30 A.M., P.W.1 went to the public well situated at a distance of 65 feet from his house in search of his

son and in the street light, he saw the body of his son lying dead in the well steps and started shouting and when he went near the dead body, he

found him dead with two stab injuries above his right hand elbow, one injury on the left side below the ambit, one injury in the front portion of the

neck and abrasions on the knees. On hearing his shouting, his wife and daughter-in-law as well as other people gathered. Thereafter, P.W.1 went

to Namakkal Police Station to lodge Ex.P.1 complaint at 8.00 A.M. where the same was received by P.w.15, the then Sub-Inspector of Police at

Namakkal Police Station, who, on receipt of the same, registered the case in Namakkal Police Station Crime No. 52 of 2001 as suspicious death.

The printed First Information Report is Ex.P.16. He sent the copy of the First Information Report to the Court and concerned officials.

(c) P.W.6, Inspector of Police, on receipt of the First Information Report, took up investigation and went to the place, where the well is situated

and where the body of the deceased was lying, and prepared observation mahazar Ex.P.7 and rough sketch Ex.P.17. He conducted inquest on the

body of the deceased in the presence of panchayatdars and also in the presence of witnesses P.Ws.1, 2 and 4 and others and prepared Inquest

Report Ex.P.18. He seized M.O.5 one pair of rubber chappels and M.O.6 blood stained sleeve banian and also sample blood under mahazar

Ex.P.8 and arranged to take photographs M.O.7 and M.O.8 through P.W.7 photographer. He sent the body of the deceased for post-mortem

along with requisition Ex.P.2 through P.W.14 Police Constable.

(d) P.W.8 Dr.Uma Maheswari attached to Government Headquarters Hospital, Namakkal, on receipt of the requisition, conducted autopsy on the

body of the deceased at 4.00 P.M. on 18.01.2001 and found the external and internal injuries as noted in the Post-Mortem Certificate Ex.P.3.

(e) After post-mortem, P.W.14 recovered M.Os. 1 to 4, viz., blood stained white colour banian, blue colour lungi, brown colour jatty and yellow

colour waist cord respectively, from the body of the deceased and handed over the same to P.W.16 with a report under Ex.P.15.

(f) P.W.16 conducted further investigation, examined the witnesses and recorded their statements. Since P.W.16 was transferred, further

investigation was taken up by P.W.17 Raju, who obtained the final opinion from P.W.8 Doctor about the cause of the death. He sent the Chemical

Analysis report and Post-Mortem Certificate to the Forensic Science Department at Government Mohan Kumaramangalam Medical College

Hospital, Salem, for further opinion and P.W.9, Police Surgeon, Professor of Forensic Medicine of the said Hospital, gave his opinion that the

cause of death was due to asphyxia and compression of neck and on receipt of the report from P.W.9, P.W.17 altered the charge sheet from

suspicious death to one u/s 302 I.P.C. and sent Ex.P.19 Alteration Report to the Judicial Magistrate.

(g) On 30.5.2002 at 2.00 P.M. when P.W.5 Palanisamy was proceeding from Periapatty to Namakkal in his T.V.S.50 vehicle, he met the first

accused, who came in his T.V.S.50 vehicle, near Fire Station at Namakkal. During that time, A-1 gave extra-judicial confession to P.W.5 to the

effect that when the deceased Mani, on 16.01.2001, refused to consume liquor along with him and co-accused in his poultry shed, he pressed the

neck of the deceased Mani forcibly and pushed him down and the other accused A-2 to A-4 caught hold of his legs and hands and A-1 again

pressed his neck, which resulted in his death and then A-1 to A-4 brought the dead body in Suzuki vehicle and pushed the same in the well.

P.W.5, on receiving such statement from A-1, went to Namakkal Police Station and informed the same to P.W.17 on 30.5.2002 at 6.00 P.M.

P.W.4 also gave statement on 30.5.2002 to P.W.17 that he had lastly seen the deceased on 16.01.2001 at 7.30 P.M. in the company of A-1 to

A-4 in the poultry shed of A-1 and he has also informed the same to Shanmugham, Palanisamy and Raman. On such statement, P.W.17 went in

search of the accused on 31.5.2002 at about 7 am and arrested A-1 in front of Periyapatty Panchayat Office in the presence of P.W.11

Ponnusamy, the then Village Administrative Officer of Periapatty, and another and A-1 gave a voluntary confessional statement Ex.P.9 (admissible

portion) to P.W.17 in the presence of the same witnesses and then took him to the office of A-1 in Namakkal - Paramathy Main Road from where

A-1 handed over M.O.9 motor cycle to P.W.17 and the same was seized by P.W.17 in the presence of the witnesses under Ex.P.10. The said

motor cycle belonged to P.W.13 Kandasamy and it was seized by the Police from one Jayam after the arrest of A-1 on 31.5.2002 at about 12.30

P.M. P.W.17 then arrested A-3 and A-4 in the presence of the same witnesses and sent A-1, A-3 and A-4 to remand. P.W.17, in the course of

further investigation, recorded statements of witnesses. On 06.6.2002, the second accused surrendered before the Judicial Magistrate No. IV,

Salem, and he was also then remanded to judicial custody. After completing investigation, P.W.17 filed the final report.

In order to establish the guilt of the accused, the prosecution examined P.Ws.1 to 17 and marked Exs.P.1 to P.19 besides M.Os.1 to 9. As

against such evidence, one Moorthy was examined on the side of the accused and Exs.D.1 and D.6 were marked.

The trial Court, considering such evidence adduced on either side and the documents marked, recorded finding that the prosecution failed to

establish the charges levelled against the accused and accordingly, acquitted A-1 to A-4. The acquittal of A-1 to A-4 is challenged by the defacto

complainant, father of the deceased, in this revision petition.

Heard the learned counsel for the revision petitioner / defacto complainant; learned counsel appearing for the respondents 1 to 4 and the learned

Government Advocate (Criminal side) for the fifth respondent.

Learned counsel for the revision petitioner / defacto complainant, by referring to the evidence of P.Ws. 1 and 2, father of the deceased and wife

of the deceased respectively, and P.W.3 Periyasamy, Kabadi Player, who also participated in the Kabadi game held on 16.01.2001 at about 4.30

P.M. along with the deceased, argued that the deceased was lastly seen by them in the Kabadi match which ended by 5.30 P.M. 16.01.2001. It is

further submitted by the learned counsel, by referring to the evidence of P.W.3, that the deceased Mani had consumed liquor while participating in

the match and he was not available at about 11.30 P.M. till that time prizes were distributed to the winners. According to the learned counsel,

P.W.3 also informed P.W.1 that he did not see the deceased after the match. It is the further submission of the learned counsel that the deceased

was lastly seen by P.W.4 in the company of A-1 to A-4 in the poultry shed of A-1, where they were drinking and quarrelling each other and on his

return, he has informed the same to P.W.6, wife of the third accused. By referring to the evidence of P.W.5, it is argued by the learned counsel

that the first accused confessed the crime to P.W.5 on 30.5.2002 at about 2.00 P.M. near the Namakkal Fire Station. Based on the above

evidence, learned counsel vehemently contended that inasmuch as P.W.4 has clearly stated in his evidence that he had lastly seen the deceased in

the company of A-1 to A-4 having drinks with them in the poultry shed of A-1 on 16.01.2001 at 7.30 P.M. and since A-1 also confessed the

crime to P.W.5, the prosecution has clearly proved the offence committed by A-1 to A-4 and, therefore, the acquittal of A-1 to A-4 by the

Sessions Court is not proper. Learned counsel submitted that the trial Court, in an erroneous approach, recorded perverse finding and the same is

to be set aside.

Learned counsel for the revision petitioner/de facto complainant, in support of his contention, relied on the decision of the Hon''ble Supreme

Court in State of Karnataka Vs. Siddappa Bansanagouda Patil and another, wherein Their Lordships held thus:

This piece of evidence of the Investigating officer discloses that the deceased had trespassed into the house of the respondents, received all the

injuries, then came to the road with bleeding injuries and fell down. As to how the occurrence originated there is no clear evidence. But we have to

infer from the circumstances that the deceased had not received all the injuries while he was on the road as spoken to by P.Ws.1, 2 and 6 but even

earlier to the arrival of the witnesses to the scene when the deceased trespassed into the house of the respondents and picked up quarrel with

them. Hence, we are in full agreement with the view expressed by the High Court that there is suppression of genesis and origin of the occurrence.

There is no clear evidence as to what was the justifiable cause for the deceased who was a well-known wrestler, to enter the house of the

respondents, and to pick up a quarrel. As we have pointed out earlier, the irresistible inference is that the deceased should have fallen victim at the

hands of the respondents only after he entered the house of the respondents.

Learned counsel for the respondents 1 to 4/A1 to A4 mainly argued that the case is one of circumstantial evidence and the prosecution failed to

establish the chain of events for implicating A1 to A4 in the commission of the alleged murder of the deceased. As regards the last seen theory of

P.W.4, learned counsel argued that it is unbelievable, in view of the fact that there was enmity between P.W.4 and A1 to A4 and as such, P.W.4

could not have gone to the poultry shed of A1 and seen the deceased in the company of A1 to A4 consuming liquor and quarrelling and returned

back after informing the wife of A3, viz., P.W.6. It is vehemently contended by the learned counsel for A1 to A4 that inasmuch as there was civil

dispute between P.W.5 and A1 as could be seen from Ex.D-1, it is unacceptable that A1 could have confessed the crime to P.W.5.

The learned Government Advocate (Criminal side) for the 5th respondent/State advanced arguments in the same line as argued by the learned

counsel for the respondents 1 to 4/A1 to A4.

This is a case of circumstantial evidence. The Post-Mortem Doctor P.W.8 has opined that the death could have occurred 40 - 50 hours prior

to post-mortem, which was conducted on 18.01.2001 at 4.00 P.M. and as such, the death of the deceased Mani could have happened between

2.00 P.M. on 16.01.2001 and 5.00 AM on 17.01.2001. It is seen that P.W.9 Police Surgeon has stated that Asphyxia is possible by

compression with hands and the death of the deceased can be caused even without a fracture of hyoid. Therefore, no inference could be drawn

that the death of the deceased was caused by A-1 to A-4. It is well settled that in a case of circumstantial evidence, the prosecution has to prove

the entire chain of events without any missing link. No doubt, P.W.4 has stated in his evidence that he had lastly seen the deceased on 16.01.2001

at 7.30 P.M. in the poultry shed of A-1 in the company of A-1 to A-4 drinking with them and he returned after informing the same to P.W.6, wife

of A-3. It is in evidence that the deceased used to consume liquor and that he also took Ayurvedic treatment because of which he stopped

drinking for about one year. It is also in evidence that after such treatment, he again started drinking. But, it is not safe to conclude that the

deceased was consuming liquor with A-1 to A-4 in the poultry shed of A-1 on 16.01.2001 at 7.30 P.M. when P.W.4 went to see A-3 and on

seeing them, he returned back in view of the fact that he did not disclose the last seen theory to P.W.16, when he conducted inquest on the body

of the deceased in the presence of P.Ws.1, 2 and 4 and other witnesses on 18.01.2001 between 11.00 A.M. and 3.30 P.M. On the other hand,

only on 31.5.2002 when he was examined by P.W.17, it was informed by him that he had lastly seen the deceased in the company of A-1 to A-4

in the poultry shed of A-1 drinking along with them and till such time, he kept quite, which is totally unbelievable as rightly held by the trial Court.

Further, in the Inquest Report Ex.P.18 it is mentioned by P.W.16 that the mother of deceased Chinnammal informed that it was one Ashok, who

had lastly seen the deceased Mani alive on 16.01.2001 at 5.30 P.M. and both of them have not been examined. It remains unexplained as to how

P.W.4 was the last person to see the deceased in the company of A-1 to A-4 consuming liquor in the poultry shed of A-1 on 16.01.2001 at 7.30

P.M. Further investigation was taken up by P.W.17 since P.W.16 was transferred during investigation. It is P.W.17, who arrested the accused. In

the Remand Report of A-1, A-3 and A4, it is not stated by P.W.17 about his examining P.W.4 on 31.5.2002 during which time, he reveals that he

had lastly seen the deceased on 16.01.2001 at 7.30 P.M. in the company of A-1 to A-4 consuming liquor in the poultry shed of A-1. Therefore,

the evidence of P.W.4 is not inspiring confidence of the last seen theory.

It appears, there is also land dispute and dispute over money transaction between one Kaliammal, mother of A-3, who was supported by A-2

and A-4 and one Nallammal and others, supported by P.W.4 and P.W.5 and in this regard, there were complaints to Police under Ex.D.6. In that

view, since there was enmity between them, P.W.4 would not have gone to the poultry shed of A-1 on 16.01.2001 at 7.30 P.M. and could not

have seen the deceased consuming liquor with A-1 to A-4. If really P.W.4 had seen the deceased lastly on 16.01.2001 at 7.30 P.M. in the poultry

shed of A-1 consuming liquor along with A-1 to A-4, certainly he could have stated so to P.W.16 during inquest on 18.01.2001. The evidence of

P.W.4, who is enimical towards the accused, does not inspire confidence and therefore, the last seen theory by P.W.4 cannot be accepted as true

as rightly held by the trial Court.

The other evidence relied on by the prosecution is the alleged extra-judicial confession made by A-1 to P.W.5 at 2.00 P.M. on 30.5.2002

near Namakkal Fire Station. It is the evidence of P.W.5 that at 2.00 P.M. on 30.5.2002, A-1 confessed to him about the commission of murder

of the deceased Mani by him along with co-accused, by pressing his neck, who was caught hold by A-2 to A-4 and again pressed his neck and

they took the body in a motor cycle and threw the same in the well. The prosecution failed to prove the close association of P.W.5 with A-1. It

appears that there was some civil dispute between them which ended in compromise as seen from Ex.D.1 on 18.01.2002. Therefore, it is quite

unbelievable that A-1 could have revealed the commission of crime to P.W.5 as stated by him at 2.00 P.M. on 30.5.2002. Therefore, the trial

Court rightly rejected to place reliance on the evidence of P.W.5 with regard to the confession said to have been made by A-1 to P.W.5.

Regarding the recovery of M.O.9 Motor Cycle which, according to the prosecution, was used for carrying the dead body after committing

murder by A-1 to A-4, there is no evidence adduced that it belongs to either of A-1 to A-4 or one Kandasamy, P.W.13. Merely because M.O.9

cycle was recovered on the basis of confession statement of A-1 (admissible portion), no such inference could be drawn and the evidence of

P.W.4 and P.W.5 also not properly established the same.

In the decision relied on by the learned counsel for the revision petitioner/de facto complainant reported in State of Karnataka Vs. Siddappa

Bansanagouda Patil and another, , the occurrence was witnessed by P.W.1 son of the deceased and P.W.2 nephew of the deceased and it was a

case of direct evidence. On the other hand, the facts on hand are totally different and this is a case of circumstantial evidence. Therefore, no

reliance can be place on the said decision.

The trial Court, considering all these aspects in its proper perspective, recorded finding that the prosecution failed to prove the case against A-

1 to A-4, which cannot be said to be perverse or erroneous and accordingly, acquittal of the respondents 1 to 4 / accused 1 to 4 need not be

disturbed with.

In the result, in view of the discussions made above, the revision is dismissed and the judgment of the trial Court dated 30.6.2003 passed in

S.C.No.35 of 2003 by the Principal Sessions Judge, Namakkal, is confirmed.