Ganesan and Others vs The State

A.S. Venkatachalamoorthy, J.—The appellants in the above appeals were tried by the learned III Additional Sessions Judge, Tirunelveli, for

causing the murder of one Gajendiran on 14.2.1995 at about 5.45 P.M. near Kailasanthar Temple at Keelnatham Vadakkur. The Sessions Court

found all the appellants/accused guilty under Sections 148, 342 and 302 read with 34 IPC. and sentenced them to undergo one year R.I. & fine of

Rs. 1,000/-; fine of Rs. 1,000/- and life imprisonment & fine of Rs. 6,000/- respectively.

The 6th accused has filed Criminal Appeal No.651/2000; Criminal Appeal No.684 of 2000 has been filed by A-8; Criminal Appeal

No.730/2000 has been filed by A-7; Criminal Appeal No.851 of 2000 has been filed by A-2 to A-5 and Criminal Appeal No. 115 of 2003 has

been filed by A-1.

As all the appeals have been filed against the same judgment, the appeals can be disposed of by a Common Judgment.

The case of the prosecution can be narrated as under:-

The deceased and PWs-1 to 3 belong to Keelnatham Vadakkur Village. While A-5 belongs to the village called Manappadaiveedu, the other

accused are residents of the village called Thimmarajapuram. There has been enmity between the residents of Thimmarajapuram on the one hand

and Keelnatham Vadakkur on the other. About 20 days prior to the occurrence, the deceased and PW-1 were returning to the village at about 7

P.M. At that time, about ten person belonging to Thimmarajapuram waylaid and attacked them. The deceased and PW-1 informed about the

same to PW-4. PWs-4 and 8 and some others went to see some elders in Thimmarajapuram with an intention to inform them seeking justice. PW-

4 informed PW-5 and two or three others about the incident and for which PW-5 replied that he will look into the matter and see that no such

incident happens in future. Ever since then, there has been enmity between the people of Thimmarajapuram and Keelnatham Vadakkur Village.

The occurrence was on 14.02.1995 at about 5.45 P.M. During the relevant period, PW-1 was working temporarily in Telephones Department.

On that day, after finishing his work, he was returning to his village Keelnatham Vadakkur in a bicycle. The deceased was also returning to the

Village in a separate bicycle almost followed by PW-1. Behind the deceased and PW-1, PWs-2 and 3 were also coming in bicycles. When the

deceased was nearing Kailasanathar Temple in Vadakkur Road, the accused suddenly came from behind the Temple armed with knife, aruval etc.

and waylaid the deceased. The deceased dropped his cycle on the floor and started running. At that time A-1 shouting, ""eP vd;dlh kapuh"",

stabbed the deceased with an aruval on the right hand, little finger and left hand. A-2 cut the deceased with an aruval on the right and left elbows.

A-3 Subramanian stabbed the deceased with a knife on the stomach and left side of the chest. A-4 cut the deceased with an aruval on the right

hip. A-5 with an aruval cut the deceased on the left thigh. Thereupon, the deceased fell down. A-6 then cut the deceased with an aruval on the

neck and left side of the head. A-7 attacked the deceased with an aruval below the right jaw. A-8 cut the deceased on the chest and left shoulder

with an aruval. This brutal attack by the accused on the deceased was witnessed by PWs-1 to 3. The said witnesses shouted at the accused and

they all ran away with the weapons they had. PWs-1 to 3 neared the deceased and found him dead. All the three of them went to the Village and

informed the father of the deceased. Thereafter, PW-1 and the father of the deceased came back to the scene of occurrence. After seeing the

deceased, both of them went to Tirunelveli Police Station and gave a complaint at about 7 P.M.

PW-14 is the Head Constable at the Tirunelveli police station. The complaint given by PW-1 was reduced to writing and the Head Constable

obtained the signature of PW-1 as well as the father of the deceased. On the basis of Ex.P-1, the Head Constable PW-14 registered Crime

No.96/95 under Sections 147, 148, 341 and 302 IPC and prepared Ex.P-42, the Express F.I.R. The said report as well as Ex.P-1 were sent to

Judicial Magistrate, Tirunelveli through PW-15 Grade-I Constable and copies were sent to his superiors.

PW-17, the Sub Inspector of Police, on receipt of the copy of the Express Report, took over the investigation, proceeded to the scene of

occurrence and reached there at about 7.15 P.M. Ex.P-5 observation mahazar and sketch Ex.P-44 were prepared by the Sub Inspector in the

presence of PWs-6 and 8. The Sub Inspector recovered cycle MO-5, silver spoon MO-13, baniyan (MO-9), drawer (MO-14), old towel (MO-

15), one pair of cheppal (MO-8) etc. from the scene of occurrence. Bloodstained earth MO-6, ordinary earth MO.7 and plastic bag MO-1 were

recovered under Ex.P-2 mahazar in the presence of PWs-6 and 8. Inquest was conducted over the body of the deceased between 7.45 and 9.45

P.M. and the inquest report is Ex.P-45. Thereafter, the Sub Inspector took steps to send the body for post mortem with a requisition Ex.P-3.

PW-7 is the Doctor attached to Tirunelveli Medical College Hospital, who commenced the post mortem at about 10.10 Hours on 15.2.1995.

Ex.P-4 is the post mortem certificate issued by him. In the said certificate, the Doctor has noted the following:-

Appearances found at the paleness of finger nails seen. Dried blood clot seen on the face, neck, chest, abdomen and upper limbs.

Injuries Noted:-

Heavy cut injury seen on the lower border of neck 14 x 13 cms. the upper border is 7 cm. below the centre of chin. The central and lateral

border is 11 cm. away from the right acromion 6 cm. above the suprasternal notch. On further exploration the greater vessels, nerves, muscles.

Tendons found cut along with cervical vertebra (C4 and C5) The upper part of the oesophagus larynx and Trachea also found cut. The edges of

the wound was bruised with clear cut margins.

13 x 3 cm. cut injury seen on the upper part of neck 4 cm. below the chin extending upto the angle of the right mandible 4 cm. below the angle.

4 x 2 cm. cut injury seen on the left sub costal region 6 cm. below Xiphisternum. It is obliquely placed.

4 x 1 cm. cut injury seen on the left hypochondrium 8 cm. above the anterior superior iliac spine on the left side obliquely placed.

16 cm. incised wound seen along the right breast extending to the opposite side upto the centre of left clavicle.

1 x 1 cm. cut injury seen on the centre of right clavicle underlying structures normal.

ON DISSECTION OF THORAX AND ABDOMEN: -

The presternal area in the upper part shows bruising. The 11th and12th rib on the left side found cut in its medical aspect which corresponds to the

above said injury No.(3). Bruising seen at the level of the left iliac fossa making a tear to the peritoneum at site. Abdominal cavity empty.

Left kidneys showed bruising

Heavy cut injury 16 x 7 cm seen on the left shoulder with a 7 cm. gap of the neck skin and it is close to the injury No.(1) On further exploration.

It was muscle deep.

14 x 2 cm. heavy cut injury seen on the left side of scalp in a curved manner 7 cm. above the left ear. On further exploration the parietal and

occipital bone found cut in a linear manner.

13 x 3 cm heavy cut injury seen at the back of head from the back of right ear crossing the mid line to the opposite side. On further exploration

the occipital bone on the right side found cut in a linear fashion.

4 x 1 cm. cut injury seen on the right frontal region. On further exploration. The frontal bone on the lateral side found cut. ON DISSECTION

OF SCALP : Thin subarchnoid haemorrhage seen on the left half of cerebral hemisphere. BASE OF SKULL: Normal.

LEFT UPPER LIMB:- 5 x 3 cut injury seen on the back of left elbow underlying structures normal. 7 x6 cm. grazing abrasion seen just close

to the previous injury. 4x 4 cm. superficial cut injury seen on the left forearm in the centre underlying structures normal. Irregular cut injury seen

close to the left wrist underlying structures normal. Asymmetry of the left palm noted. The left thumb found cut at the base and hanging separately

with a flap of skin at the back. The adjacent soft tissues found cut. The left Index finger found irregularly cut involving the phalanges, Irregular cut

injury seen in the centre of left ring and middle finger. The phalanges of the right finger found irregularly cut. Two cut injuries 3 x 1 cm. x 2 x 1 cm.

seen one below the other at the level of wrist underlying structures normal.

RIGHT UPPER LIMB:- Heavy cut injury 7 x 5 cm seen on the back of right elbow. On further exploration the muscles, tendons, vessels and

upper part of elbow bones found cut. Defence cut injury at the tip of little finger making cut to the base of terminal phalanx. Left lower limb 3 x 2

cm cut injury seen on the centre of outer aspect of left thigh. Underlying structures normal. 2 x 2 cm. cut injury seen on the outer aspect of left

lower thigh. Underlying structures normal.

HEART: All chambers contained a little blood.

LUNGS: Cut section pale.

HYOID BONE: Found missing

STOMACH: 10 grams of partly digested cooked rice particles.

MUCOSA: Normal. No specific smell.

LIVER, SPLEEN & KIDNEYS : Cut section pale.

BLADDER : Empty.

TIME OF DEATH: 16 to 18 Hours prior to post mortem examination.

The opinion given in the said certificate is to the effect that the deceased would appear to have died of heavy cut injuries sustained by him.

According to the Doctor, the deceased would have died about 16 to 18 hours prior to the post mortem and that the injuries are ante mortem. The

cloths that were found on the body of the deceased viz., MOs-10 to 12 were seized and sent to the court of Judicial Magistrate.

A-1 was arrested by PW-18, the Inspector of Police at about 9.30 A.M. on 18.2.1995 in Tiruchendur Road near a Mandapam in the presence of

PWs-9 and 10. The accused gave a voluntary confession statement and the admissible portion of the same is Ex.P-46. The accused took the

police party and the witnesses to a place near Kailasa Nathar Temple and produced MO-16 aruval, which he had earlier hidden in the sand in the

Vaikkal and the same was seized under Ex.P-47, signed by PWs-9 and 10. A-2, A-7 and A-8 viz., Murugan, Sundar and Muthu, surrendered

before the Judicial Magistrate, Nanguneri. A-6 Ganesan surrendered before Judicial Magistrate No.6, Tirunelveli while A-3 Subramanian, A-4

Kannan and A-5 Pattan surrendered before the Court of Judicial Magistrate, Cheranmadevi. PW-18, the Inspector of Police then took steps to

get the police custody of those 7 accused. After so getting, on 27.2.1995 at about 5.30 P.M., he enquired A-2 Murugan in the presence of PWs-

12 and 13. The said accused gave a voluntary confession statement and the admissible portion of the same is Ex.P-48. Similarly, at about 6 P.M.,

A-7 Sundar gave a voluntary confession statement and the admissible portion in it is Ex.P-49, again in the presence of same witnesses. A.8 Muthu

also gave a voluntary confession statement at 6.30 P.M. in the presence of witnesses and the admissible portion is Ex.P-50. At 7 P.M., A-6

Ganesan gave a confession statement in the presence of witnesses and the admissible portion of the same is Ex.P-51. Similarly, A-3 Subramanian

gave a voluntary confession statement at about 7.30 P.M. in the presence of witnesses and the admissible portion in it is marked as Ex.P-52. A-4

Kannan followed suit and the admissible portion of the statement in it is Ex.P-53. A-5 Pattan gave a confession statement at 8.30 P.M. in the

presence of witnesses and the admissible portion in it is Ex.P-54. On the next day, that was on 28.2.1995 at about 8 A.M., A-2 Murugan took

the police party and the witnesses to a thorny bush near Alagunachiamman Koil and produced an aruval, which he had hidden earlier. The said

weapon is MO-17 and the recovery was in the presence of PWs-12 and 13 and Ex.P-55 is the seizure mahazar. A-7 Sundar produced the aruval

(MO-18) from a thorny bush near Alagunachiamman Temple which he had hidden earlier and the same was recovered in the presence of

witnesses and the mahazar prepared in this regard is Ex.P.56. A-8 Muthu also produced the aruval (MO-19), which was hidden by him in a

thorny bush again near the same Temple. At that time, PWs-12 and 13 were also present and the weapon was seized under a mahazar Ex.P-57.

A-3 Subramanian produced a knife at about 10 A.M. which he had hidden earlier in a thorny bush near Madasamy Temple. MO-20 is the knife

and the mahazar prepared in this regard is Ex.P-58, signed by PWs-12 and 13. A-4 Kannan also produced an aruval from a bush near Madasmy

Temple and PWs-12 and 13 were also present at that time. The aruval is MO-21 and the same was seized under a mahazar Ex.P-59. Similarly,

A-5 Pattan took the police party and the witnesses near a brick-kiln in Keelakarayan village and produced aruval from a thorny bush, which is

MO-22. PWs-12 and 13 were present throughout and they also signed the mahazar prepared in this regard viz., Ex.P-60. A-6 Ganesan, in the

presence of same witnesses, produced an aruval from a bush near a brick-kiln again in Keelakarayan village. MO-23 is the aruval and Ex.P61 is

the mahazar prepared in this regard.

The Inspector of Police then took steps to send these Material Objects to the Court of Judicial Magistrate to be sent along with other Material

Objects for chemical analysis. Ex.P-12 is the Chemical Analysis report while P.13 is the Serologist''s report. The Inspector examined the witnesses

on various dates. After completing the investigation, he filed his final report on 8.3.1995.

When questioned u/s 313 Cr.P.C., the accused denied any complicity in the commission of the crime and pleaded total innocence.

The question that arises for consideration is, as to whether the prosecution has brought home the guilt of the accused.

PW-7 is the Doctor attached to Tirunelveli Medical College Hospital, who, on receipt of the requisition Ex.P-3 from the Sub Inspector of

Police, conducted post mortem over the body of the deceased on 15.2.1995 at 10.10 A.M. and issued Ex.P-4, the post mortem certificate. We

have already extracted the relevant portion from the post mortem certificate, which would show as to what the Doctor had noticed. In the said

certificate, the Doctor had opined that the deceased died of heavy cut injuries sustained by him. As PW-7, the Doctor reiterated the opinion he

had given in the post mortem certificate. Before Court, the Doctor has also deposed that the deceased would have died about 16 to 18 hours prior

to post mortem. According to the Doctor, all the injuries are ante mortem, and that the injuries could have been caused by weapons like MOs-16

to 23. It is also the opinion of the Doctor that injury No.1 is by itself sufficient to cause the death of the deceased. In the cross examination, the

Doctor has further deposed that injury Nos.10 and 11 independently would be sufficient to cause death. The medical evidence placed before this

Court is sufficient for this Court to come to conclusion that the deceased died only of homicidal violence.

The case of the prosecution as spoken to by PWs-1 to 3 is that at about 5.45 P.M. on 14.2.1995 the deceased was returning to his village,

followed by PW-1 in another bicycle. PWs-2 and 3 also came behind PW-1 in bicycles. When the deceased was going near Kailasanathar

Temple, the accused came from behind the Temple and seeing this, the deceased dropped his cycle and started running. But however, he was

encircled and attacked by the accused. When PWs-1 to 3 shouted, all the accused ran away, carrying weapons. Thereafter, PWs-1 to 3 went to

the village, informed the father of the deceased. Both PW-1 and the father of the deceased came to the spot. After seeing the body of the

deceased, they went to the police station and PW-1 gave the complaint in which the deceased''s father also signed.

Ex.P-1 is the complaint given by PW-1 to the Head Constable. The said complaint runs to two pages. PW-1 has given a vivid description as to

how the incident had occurred. Not only the names of the accused but also their fathers'' names had also been mentioned therein. In respect of

three accused, PW-1 has given the place to which they belong to and for three accused, he has mentioned the profession that is carried on by their

fathers. But, if we peruse the evidence of PW-1, it could be seen that PW-1 is not able to give the names of the accused so also their fathers''

names. The strange factor is that in the chief examination, PW-1 has given the names of all the accused and also as to how they attacked. We do

not understand how this could have been possible. The only conclusion we can come to is that PW-1 would have just memorised what all tutored

to him and deposed it in the chief examination. But when he was cross examined, he could not remember it and that is why he came out openly

saying that he does not remember the names of the accused. At this stage, the learned Additional Public Prosecutor submitted that since PW-1

was in the service of Border Security Force and because of lapse of time, he would have forgotten the names of the accused. We are not prepared

to accept this submission of the learned Additional Public Prosecutor particularly more so when the prosecution has not let in any evidence as to

when PW-1 joined the Border Security Force.

The other aspect that is disturbing us is that even in the chief examination, PW-1 has straight away stated that A-6 was not present at the time of

attack. In Ex.P-1 the overt act attributed to A-6 is that he attacked the deceased on the neck and on the right side of the head. After attributing

such serious overt acts to him, how is it that PW-1 has fully given up PW-6.

Yet another aspect which we cannot ignore is as to how PW-1 could remember and state in Ex.P-1 the attack by various accused on various

parts of the body. As already mentioned, according to the F.I.R., the deceased was encircled and attacked by 8 accused. Firstly, we find it rather

difficult to believe that the accused started attacking one by one. That apart, we see that PW-1 is able to give the exact parts of the body where

the deceased was attacked and totally he has mentioned about the accused causing 15 injuries (including the parts of the body). For instance, while

referring to attack by A-1, he has stated that A-1 attacked on the right hand, little finger and left hand thumb and left hand index finger. Certainly, it

would not have been possible to give such a very detailed and graphic description of the incident that happened.

The complaint Ex.P-1 was lodged at about 7.15 P.M. According to the prosecution, Express F.I.R. was prepared immediately and sent to the

Court of Judicial Magistrate through PW-15 Grade-I Constable. The Court of Judicial Magistrate is just about 2 Kms. away from the police

station. The Express Report reached the Magistrate only at 1.15 A.M. PW-15 in his cross examination has categorically stated that a healthy

person can cover this distance by walk just in 15 minutes. He has also admitted that a two wheeler and a police jeep are available in the police

station. It is not the case of the prosecution that at that time there was some emergency in the sense that there was want of police force to carry the

FIR to the court. It is the duty of the Police Officer to send the Express F.I.R to the concerned Magistrate forthwith that is without any delay. But

here, there is a delay of virtually six hours in the FIR reaching the Magistrate''s Court. In the absence of any explanation on the part of the

prosecution for not sending the FIR immediately to the Court, this Court has to only come to the conclusion that something basically wrong in the

case of the prosecution.

The other striking feature we notice is that the FIR, an handwritten one, runs to two pages. We find that in page No.1, there are 26 lines

written, whereas in page No.2, we find there are 37 lines. We make it clear that merely on this, this Court is not entertaining any doubt about the

genuineness of the FIR, but coupled with other two factors viz., the inability of PW-1 to give the names of the accused and their fathers and the

delay in FIR reaching the Court, this Court comes to the conclusion that Ex.P-1 is certainly not the complaint that was lodged by PW-1 to the

Head Constable PW-14. Or in other words, the prosecution has burked the real complaint lodged by PW-1 to the police.

There are also two more aspects, which we are inclined to point out. The case of the prosecution is that 20 days prior to the occurrence, the

deceased and PW-1 were attacked by the persons belonging to Thimmarajapuram and that in this regard, there was some sort of mediation.

Among these two groups, if at all any group is aggrieved, it is only the people of Keela Vadakkur. Certainly, there was no provocation for the

accused to again attack the deceased. There may be some motive for the accused to attack the deceased, which the prosecution has failed to find

out. We are considering this aspect only in the light of our conclusion with reference to the genuineness of the FIR. The other aspect is that the

other two witnesses PWS-2 and 3, who have been examined as eye witnesses, are in fact in the nature of chance witnesses. PW-1 has clearly

admitted in his cross examination that these two witnesses are closely related to him. That being so, we find it rather difficult to place any reliance

on the testimony of these witnesses.

As far as the recovery of weapons are concerned, according to the report of the Serologist, no blood was recovered in the weapons except

one and even in that, though human blood was found, the result of the grouping test is inconclusive.

In the facts and circumstances of this case, this Court is of the considered view that the prosecution has not brought home the guilt of the accused

beyond all reasonable doubts.

In the result, the appeals are allowed. The appellants (accused 1 to 8) are acquitted of all the charges viz., under Sections, 148, 342 and 302

read with 34 IPC. The fine amount paid by the appellants/accused shall be refunded to them. The appellants/accused shall be released forthwith if

they are not required in connection with any other case.