Kanakkan alias Arumugham and another vs State

Arunachalam, J.—This appeal is directed against the conviction and sentence of life imprisonment awarded and imposed on the first

Appellant u/s 302, I.P.C. (simpliciter) and a similar sentence imposed on the second Appellant u/s 302 read with 34 I.P.C. in S.C. No. 116 of

1986 on the file of the Principal Sessions Judge, Tirunelveli.

Occurrence which led to this prosecution had allegedly taken place at or about 10 p.m. on 30.7.1985 at Mudalaikulam village when the

Appellants were stated to have dragged deceased Pechithai from her house and thereafter first Appellant cutting her with an aruval on her head,

left shoulder, right thigh, left hand, chest, neck and left thigh, while the second Appellant indulged in beating her indiscriminately with a vel stick. As

a result of the attack by the Appellants, deceased died instantaneously.

P.W. 2, Isakki is a neighbour of deceased Pechithai. P.W.2, Mylammal a ten year old child witness is the daughter of the deceased Pechithai,

P.W.3, Pandarathevar, a normal resident of Marukkalkurichi claims to have been present at Mudalaikulam and asserts having witnessed the attack

on the deceased by both the Appellants. P.W.3 is the husband of two elder sisters or the first Appellant, born through the first wife of A-1''s

father, Appellants in the company of two or three others are stated to have committed mischief to the house of deceased Pechithai about nine

months prior to occurrence. In respect of the said incident, deceased had preferred a complaint at Nanguneri Police Station and it appears that the

Appellants were convicted and sentenced by the trial magistrate, further, there was prior litigation between P.W. 1, P.W.3 and the deceased on

the one side and the Appellants on the other side. A-1 had prosecuted P.W.1 and his father before Judicial First Class Magistrate, Tirunilveli.

P.W.1 claims that the case ended in acquittal. P.W.3 had also preferred a counter complaint against A-1 in which P.W.3 was examined as a

prosecution witness. In the case against P.W.1 and his father first Appellant was examined as a prosecution witness. P.W.1 feigns ignorance if a

case was charge-sheeted against A-1 for having beaten his brother and his father. It is further clear from the version of P. Ws.2 and 3 that A-1 is

the senior paternal uncle of P.W.2 and that A-2 is the brother-in-law of A-1. There had been some disputes regarding property between the

deceased and her first Appellant. It is also apparent that both parties were prosecuted for affray referable to Cr. No. 233/84 on the file of

Nanguneri Police Station Enough documentary evidence has been placed by the prosecution, to show prior inimical disposition between deceased,

P.W.1 and P.W.3 on the one side and the Appellants on the other.

It is in this background that the impugned occurrence is alleged to have taken place at or about 10 P.M. on 30.7.1985 just opposite to the

house of deceased Pechithai alias Pappa. According to P.W.1 at or about the time of occurrence he was outside the pial of his house along with

his wife (not examined) and P.W.3 Pandatarathevar and engaged in conversation. He then noticed the Appellants coming towards east from the

western direction the first Appellant holding a vettu aruval and the second Appellant wielding a vel stick M. Os.1 and 2 respectively. As they were

nearing the house of the deceased they were hurling vulgar abuses against the deceased and specifically stated that because of the deceased they

were forced to move from one court to another and hence they would not leave her without killing. The second Appellant went inside the house of

the deceased with his weapon, pulled the deceased who was lying inside by her tuft, dragged her outside and in the street beat her indiscriminately

with his vel stick and at the same time first Appellant cut on the vital parts of the body of the deceased, as described earlier, with M.O.1 aruval.

Due to a cut inflicted by the first Appellant, except left little finger, the other portions of the hand beyond the elbow fell down separately. Soon after

the incident, P.W.s. 1 and 3. inclusive of others, present found the deceased dead. P.W.2 was standing near her deceased mother and weeping in

distress. Appellants, along with their weapons of offence, ran away eastwards. It is the case of the prosecution that there was bright moonlight,

apart from street lights which furnished sufficient light to clearly witness the incident. P.W.1 would have it that out of fear he did not leave the village

and chose to prefer a complaint at Nanguneri police station situated six miles away from the scene only on the next morning at 6:30 a.m. P. W. 14

Asirvatham Thangiah, Sub-Inspector of police, reduced into writing the narration of P.W. 1 at or about 6:30 a.m. on 31-7-1985 and on Ex.P.1 so

recorded registered Cr. No. 244/85 u/s 302, I.P.C. Ex.P.18 is the printed first information report. He despatched Exts P-18 through police

constable Arumugham (P.W.10) to the Judicial II Class Magistrate, Nanguneri, while forwarding a copy of Ex.P.18 to higher police officials.

P.W.15 Sundaram, Inspector of Police, Valliyur was in charge of Nanguneri Police Station on 31-7-1985. On receipt of telephonic information

about registration of this crime, he proceeded to Nanguneri police station, obtained copy of Ex.P-18 and took up investigation soon thereafter. He

reached the scene at 7-30 a.m. and prepared observation mahazar, Ex.P-4 and scene sketch, Ex;P-19. Between 8 and 10-30 a.m. he conducted

inquest over the corpse of Pechithai. During inquest, he examined P. Ws.1 to 3 and others. Ex.P.20 is the inquest report P.W.15 seized from the

scene blood-stained earth M.O.8 and sample earth M.O.9 under mahazar, Ex.P-5. He arranged for photographs being taken of the corpse in

different angles, through P.W. 7 Muthupandian. M. Os. 4 to 7 and Ex.P-9 are the photographs. After inquest, P.W.15 forwarded the corpse, for

the conduct of post mortem, with a requisition Ex.P-2, through P.W. 9 police Constable Rajagopal.

P.W. 4, Dr. Jayapal commenced post mortem at 3:30 p.m. on 31-7- 1985. Following external injuries were found:

An incised wound of about 12""xl/2""xl"" involving frontal parietal occipital region of the skull brain tissue seen protruding out of the wound.

An irregular lacerated cut injury obliquely involving left cheek mandibular region back of the left side neck and left external ear of size 12""x

12""x8"".

An ellipitical incised wound over the right neck size 8""x4""x6

An irregular cut injury from left shoulder left elbow joint size 15""x6""x6"". Muscles bones, vessels cut.

An incised wound of about 4""xl""x2"" over the upper half of the left fore-arm, bone cut.

On the left hand ring finger and index finger completely severed from the hand left thumb was absent.

An incised wound over the upper half of the left thigh over the anterolateral side of about 12""x4""x6"". Bone cut muscles cut.

A deeply incised wound of about 4""xl""x2"" over the upper quadrant of the right breast.

An irregular lacerated wound over the right thigh involving the lower half and upper part of knee joint size of about 18""x8""x7"" Bones cut,

muscles cut, vessels cut.

An incised wound of about 3""z1""x1"" in front of the middle of the right leg muscles cut.

An incised cut injury of about 4""x4""x4"" over the middle of the right upper arm muscles cut. Bone cut.

On internal examination the following features were noticed by the Medical Officer:

Fracture frontal parietal bones found. Brain tissue corresponding area injured,

There was fracture on the center of left cheek bone.

There was fracture of the body of the mandible of left side atlanto axial joint severed. Spinal cord injured. Carotid blood vessels cut. Half of the

left ear completely severed.

Head of the numerous left side severed. Biceps triceps muscles cut. Branchial artery is cut.

There was fracture of head of the radius on the left side.

There was fracture 34dx4th metacarpal bones of the left hand.

Muscles of the left thigh cut. There was fracture of the femur in the middle 1/3.

There was fracture of femur right and femoral vessels cut.

Right lower end of the humerus over cut along with biceps and triceps. Right forearm was lying down separately from the right-arm was lying

down separately from the right arm.

On internal examination of the organs. P.W.4 noticed 200 ml. of undigested rice particles in the stomach and emptiness of the bladder. Brain tissue

was found injured over frontal and parietal lobes. Membrances of the brain were found injured over the frontal parietal and occipital region of the

skull. Spinal cord was found cut and injured at atlanto axial region. There was also fracture of atlas and axis hyoid bone was intact. In the opinion

of the Doctor, deceased would appear to have died of haemorrhage and shock due to the injuries sustained 16 to 18 hours prior to post mortem.

Ex.P-3 is the post mortem certificate. Injury No. l was necessarily fatal. After sustaining of injury No. l death would have been instantaneous.

Deceased could have consumed food two hours prior to her death. Cut injuries were possible due to an attack with M.O.l Forcible beating, with

the vel portion of M.O.2, could also result in cut injuries.

Further investigation was taken over on l-8-1985 by P.W.16, Chandrasekharan, Inspector of Police, Nanguneri. P.W.16 had information on 5-

8-1985 that both the Appellants had surrendered before the Judicial Second Class Magistrate, Srivaikuntam on 6.8.1985 P.W. 16 preferred a

petition before the said Magistrate for police custody. On police custody being ordered, he took the Appellants and had then examined in the

presence of P.W.6 and another at 8 a.m. on 7.8.1985. A-1 volunteered a statement, the admissible portion of which is marked as Ex.P-6, while a

similar statement made by the second Appellant is Ex.P-7. Both the Appellants, in pursuance of their statements, took P.W.16 and his party to a

railway station situated 3/4 furlongs away, and from underneath a bridge A-1 produced M.O.1 aruval, while from the same place A-2 produced

M.O.2 vel stick, which were seized under mahazar Ex.P-8. P.W.16 forward material objects seized during investigation for chemical analysis

through Court; P.W.8 Dharmar, Head Clerk of the court of the Judicial Second Class Magistrate, Nanguneri, has proved Exts. P-13 and P-14,

reports of the Chemical Analyst and Serologist respectively.

P.W. 10 Police constable Arumugham had handed over Exts. P-1 and P-18 to the Judicial Second Class Magistrate, Nangunieri at 7 a.m. on

31-7-1985. P.W.11 Thangam and P.W.12 Joseph, Sub Inspectors of Police were examined to speak about prior prosecutions against the

accused, P.W.1 and the deceased with reference to certain crimes vouchsafed by documentary evidence. P.W.13 Vanamamalai Thevar is the

wireman of the Tamil Nadu Electricity Board. He was examined to depose about the burning of lights near the scene of occurrence between 6

p.m. on 30-7-1985 and 6 a.m. on 31-7-1985. After completion of investigation, P.W.16 laid charge sheet against the Appellants before the

committal Court on 16-8-1985.

When the Appellants were examined u/s 313, Code of Criminal Procedure to explain the incriminating circumstances appearing against them in

evidence, they chose to deny their complicity in the crime. They went on to add that due to prior animosity this false case had been foisted against

them.

Learned trial Judge, on assessment of oral and documentary evidence, accepted the prosecution case, rejected the defence and dealt with the

Appellants as stated earlier.

Mr. P. Kulandaivadivelu, learned Counsel appearing on behalf of the Appellants, contended, that P. Ws. 1 to 3 could not have witnessed the

occurrence and that they have been planted, with an ulterior motive to falsely implicate the Appellants in this grave crime. He further argued, that P.

Ws.1 and 3 were admittedly inimical witnesses and a perusal of their evidence, would be sufficient, to discard their versions. He commented about

the late setting of the law in motion. He pointed out that an out-post police station was available within a mile, in which hamlet, the village

Administrative Officer was also residing. Further there was Telephone facility in the said village. According to the learned Counsel, if this

occurrence had taken place in the presence of P.W.1 he would not have failed to take quick steps to prefer a complaint. As far as P.W. 2 is

concerned, he submitted that the child witness had been tutored to speak in a particular pattern and her version alone may not be sufficient to

convict the Appellants. He then contended that the medical evidence was contrary to the ocular account of the incident, and it was apparent that

A-2 had been falsely implicated, for no injury, which could have been caused by a vel stick, was found on the deal body. By reference to the

photographs of the dead body, he argued, that missing of large quantities of flesh from the body, was visible and that such flesh had not been

available for seizure at the scene, which probabilised the occurrence having taken place elsewhere, in an altogether different pattern. Non

examination of independent witnesses, who must have been available at the scene with specific reference to Sankaralingam, a night watchman in

the opposite noon meal center was pointed out.

On these contentions, we have heard Mr. B. Sriramulu, learned Public Prosecutor. He strenuously argued, that the evidence of the child

witness, P.W.2, was inherently probable and acceptable and on her evidence alone, complicity of the Appellants in the crime, was quite clear.

However, he was fair enough to state, that the investigating agency ought to have examined the night watchmen Sankaralingam, whose presence at

the scene has been spoken by P.W.1. He was able to appreciate the infirmities in the evidence of P. Ws. 1 and 3, which needed lending assurance

evidence from independent witnesses like Sankaralingam and others before acceptance learned Public Prosecutor was able to visualise the non-

corroboration between the oral and medical evidence. He submitted that except the evidence of P.W. 2 which prima facie rings true, there was

enough lacunna in the prosecution case and the possibility of basing a conviction on the evidence of P.W.2 alone had to be considered by us.

We have carefully analysed the divergent contentions placed for our scrutiny. That the occurrence had taken place at Mudalaikulam at or

about the time spoken to P. Ws. 1 to 3, cannot be seriously disputed. Medical evidence furnished by P.W.4 clearly establishes that this is a case of

homicide. However, what we are concerned, is whether the Appellants are the offenders or there was a possibility of the occurrence having taken

place in an altogether different pattern when the ocular witnesses had not been present at the scene.

We will prefer to refer to the medical evidence primarily, before auditing the ocular version. It is the definite case of the prosecution,

commencing from the stage of first information till examination of witnesses before court, that A-2 had wielded M.O. 2, a vel stick and had beaten

indiscriminately all over the body of the deceased after dragging her by her tuft of her house. We find as many as eleven external injuries on the

dead body. Almost all the injuries are incised or cut injuries, which could not have been caused by beating with a vel stick. Though injury No. 2

has been described as an irregular lacerated injury, we find, that its size is 12""x12""x8"", which could not have been caused, even by the vel portion

of M.O.2. Again injury No. 9 has been described as an irregular lacerated wound over the right thigh, but we find that it measures 18""x8""x7"". This

injury which has cut the bones, muscles and vessels, we are certain, could not have been caused by the vel stick.

P.W.4, the Medical Officer, was cross-examined about the possibility of a vel stick having been employed in this occurrence to cause injuries

on the victim. He has specifically stated, that he had not seen any injury on the dead body, which could have been cause by the stick portion of

M.O.2. If the vel portion of M.O.2. had been used in the attack, it could have caused injuries only on the head and both shoulders, because of the

length of the stick attached to this vel. In the other portion of the body if a vel portion had been used, it could have caused only scratches. Such

scratches were not found on the dead body. Even about injury No. 9, the Medical Officer has opined that it could have been caused by M.O. 1

aruval. We inspected M.O.1 and we find, that it has a long blade portion measuring about 20"" while the handle measures about 4"". It is fairly

apparent that a vel stick could not have been used in this occurrence, be it the stick portion or the vel portion. If the medical evidence excludes the

possibility of vel stick having been employed in causing the injuries on the deceased, we can prima facie hold that there has been an attempt to

include A-2 also in this crime, though all the injuries could have been caused by one person wielding an aruval.

Medical evidence reveals more of infirmities in the prosecution case. It is the definite case of P.W.2, that she and her mother after food went to

sleep at or about 8 p.m. Occurrence had taken place two hours thereafter. If the occurrence was after a considerable time, after consumption of

food, there must have been partial digestion. Medical officer has found that there was no digestion and this is one indication of the occurrence

having taken place shortly after consumption of food. Anyhow, on the mere theory of digestion, we do not ,want to base our conclusions but this

factor can be taken along with several other vital circumstances. Medical Officer has found that flesh on the right thigh to the extent of

18""�18""�7"" was missing. Then the thigh joint to the knee, the bone portion was completely visible. The photographs of that portion of the

dead body produced by the prosecution was scrutinised by the Medical Officer, who offered his opinion that considerable amount of flesh

appeared to have been pinched away from that portion. Injury of that nature could be the result of throwing of a country bomb or due to a motor

vehicle accident. The said injury, inclusive removal of flesh, could not have been caused by M.O.1. Further, from M.O.4, the Medical Officer was

able to notice that between the left shoulder and the elbow, flesh was missing. If substantial portions of flesh had come out of the dead body, as a

result of cutting the victim, by either of the Appellants, these flesh portions must have been found near the dead body or atleast within short

distance from the corpse. Those flesh pieces could not have been removed by any one, since P. Ws. 1 and 3 were available throughout the night

near the dead body, till P.W.1 chose to leave for the police station on the next early morning. P.W. 15, the first Investigating Officer, has admitted,

that his investigation did not disclose as to what had happened to the flesh pieces that had got separated from the dead body, due to the attack by

the Appellants. Not only the flesh portions were missing, but even the left thumb portion also, was not found either adjacent to the dead body or in

its vicinity and it is amazing that the Investigating Officer would choose to depose that his investigation did not reveal as to what had happened to

that dismembered part. It is, therefore, possible to conclude, that not only one more person has been sought to be implicated in the crime arming

him with a vel stick, but also lack of explanation exists as to what had happened to the flesh portions which must have fallen down at the scene.

Medical evidence pin-points that flesh portions could not have been removed to such a vast extent, by mere cutting with aruval, M.O.1. Even

without going into that possibility, we are satisfied, that the prosecution owed a duty to explain as to what had happened to so much of flesh, which

could have disappeared from the scene, along with the left thumb, when the occurrence had taken place in the presence of P. Ws. 1 and 3 and

further when the dead body was completely and constantly under their gaze, till the investigating agency took over. This possibility, portrays the

probable absence of the eye witnesses during the incident, and the further possibility of portions of flesh having been snactcned away by animals,

as suggested by the defence in the absence of anyone else near the dead body. A look at the photographs taken by the investigating agency,

showing missing of mass flesh, would not permit any other inference being drawn, other than doubting the occurrence having taken place, as

spoken to by P. Ws. 1 to 3.

There is one other angle in which medical evidence can be scrutinised while appreciating the evidence of P.W.2, the child witness. If, as

claimed by P.W.2, she and her mother had gone to bed at 8 p.m. after food, there must have been collection of urine in the bladder. Medical

examination has revealed that the bladder was empty. This is one other indication to show that the deceased could not have taken her bed after

food at 8 p.m. incidentally exposing the probability of the occurrence having taken place much earlier to 10 p.m. which would then account for the

presence of totally undigested food particles and the emptiness of the bladder.

Again, we find that there was a pool of blood to a radius of 3 ft. near the head portion of the dead body alone. P.W. 4 Medical Officer is

certain, that since considerable number of main arteries were found cut blood should have splashed and spread over to several places of

movement of the victim who could have been totally static. The absence of such spreading of blood also cast a doubt as to the occurrence having

taken place as projected by P. Ws. 1 to 3.

Though on the medical evidence, we entertain substantial doubt about the occurrence having taken place as put forth by the prosecution, we

still owe a duty to scrutinise the ocular version. In the usual course, evidence of P.W. 2. A neighbor of the deceased, will be very valuable for the

prosecution, if he could be termed disinterested witness. Since he has spoken about the attack on the victim by A-2, which has been disproved by

medical evidence, there is prima facie an infirmity in his version, which infirmity will be applicable to the version of P. Ws. 2 and 3 as well. If P.W.

1 had witnessed the occurrence as claimed by him, nothing could have stopped him from proceeding to the out-post police station situated one

mile away from the scene of occurrence, to set the law in motion. Admittedly, the village Administrative Officer and the Thalayari are residents of

Palankulam, situated less than a mile from the scene, in which village telephone facility was also available, which could have been utilised for

informing the police about this grave crime. It is not as though P.W. 1 is a stranger to court proceedings and, therefore, was in a dilemma as to the

action he should take after witnessing the occurrence. Admittedly, Nanguneri could be reached by bus within 20 minutes. To reach Palankulam

road to board a bus, all that was required was about 10 to 15 minutes walking. On the admission of P.W.1, as well as on the evidence of P. Ws.

11 and 12, wherever P.W. 1 has denied his involvement in crimes, we are satisfied, that there was deep seated animosity between A-1 and

P.W.1. Between P.W.1 and P.W.3 there is nothing much to choose, for both of them had preferred complaints against A-1 and others and

similarly A-1 had preferred complaints against either of them or the members of their families. Having been involved either as prosecution witness

or an accused in some prosecution, P.W.1 must have been aware that he had to take quick steps to prefer a complaint about the incident he had

witnessed. The only reason stated by him for the delay, is that out of fear he chose to remain in his house. We are unable to attach too much of

importance to fear-psychosis spoken to by P.W.1 on the peculiar facts of this case. Evidence shows, that the scene locality has several houses in

the vicinity, with a night watchman available opposite to the scene, who would not have been missed P. Ws.1 to 3, with whose assistance, P.W.1

could have proceeded to Palankulam and over the telephone contacted the law enforcing agency to take quick steps to initiate legal action. If there

was really a fear complex, P.W.1 would not have gone alone on the next early morning to prefer a complaint. He could have taken some

assistance. When questioned on this aspect, he has stated that he did not think it necessary to take any help to proceed to the police station. He

had gone alone upto Palankulam road before he boarded a bus. The claim of fear-complex, to our mind, appears to be a mere myth, trotted out to

explain the long delay in the preferring of the First Information Report.

If the occurrence had taken place, as spoken to by P.W.1, he would not have omitted to send information to the brothers of the deceased,

who are residents of Marukalkurichi, situated within seven miles from the scene of occurrence. If P.W.1 had experienced fear at the hands of the

Appellants, it is not known as to how he had chosen to admit, that when the Appellants were proceedings towards the house armed with weapons,

he had no fear about them, though he was seated on the outside pial of his house. As we have already stated, if P. Ws. 1 and 3 had deep-seated

animosity against the Appellants and the Appellants were equally inimically disposed towards P.ws.1 and 3. it cannot but astonishing us that the

Appellants had not caused any harm to P. Ws.1 and 3, knowing fully well, that they were possible ocular witnesses for this grave crime. If P.W.1

had entertained any fear which prevented him from quick preferring a complaint, that fear must have been present in him when the Appellants went

towards the house of the deceased armed and in that contingency he would have rushed to protect himself, rather than, allowing himself to be in the

gaze of the Appellants, to speak about each and every one of the cuts inflicted on the deceased by either of the Appellants. There is one other

disturbing factor, which probabilises the possible absence of the ocular witnesses, in the occurrence village. Admittedly, at Marukalkurichi and

Panagudi villages, Kodai festival was being celebrated on that particular night, which normally attract all relations of the villagers, even those staying

far away. If that be so, P.W.3 a normal resident of Marukalkuruchi would not have chosen to stay at the scene village, without any ostensible

purpose, except to figure as an eye witness in this crime. Even the wife of P.W.1 is a native of Marukalkurchi, and all the more it is reasonable to

expect P.W.1 to have gone to Marukalkuruchi for the festival, along with his wife and the other members of his family. The maternal uncles of

P.W.2 are also residents of Marukalkuruchi and it appears possible that P.W.-2 could have joined her uncles at Marukalkuruchi, for any child in

normal circumstances will be attracted by festival. P.W.3 is also a close relation of P.W.1, apart from his animosity against the first Appellant.

P.W.1 claims that he was not examined during inquest, which is contradicted by the investigating officer. He had also not seen any piece of flesh

near the dead body of the deceased. We are not inspired with the version of P.W.1 for the variety of reasons mentioned by us and looked at from

that angle the delay in the preferring of the First Information Report, tends us to hold that after deliberation and confabulation, the First Information

Report had been brought into existence against avowed enemies.

P.W.3, as we have stated earlier, is a resident of Marukalkurichi, where admittedly Kodai festival was being celebrated. He had no particular

need to stay in the scene village on that particular night. Except for attending to agriculture, admittedly, he had no work at Marukalkurichi village.

Even grains were not gathered on that particular day, by P.W.3. He would have it that his house at Mudalaikulam was smashed to pieces by the

first Appellant and it was thereafter that he commenced staying at Marukalkuruchi. In that background, it looks more reasonable, that P.W.3

would have proceeded to Marukalkurichi, even if he had come to the scene village earlier in the day for the purpose of agriculture. There was no

need for him to stay in the house of P.W.1, especially when his own house was situated within such a short distance where the village festival was

being celebrated then. He has admitted that the wife of the first Appellant had preferred a complaint against him, his son, his daughter-in-law and

the deceased. Cr. No. 233/84 is the relevant crime. He has admitted, that the deceased and his son were shown as ''A'' party, while A-1, wife of

A-1 and the mother of A-1 were shown as ''B'' party in an affray case, which again ended in acquittal of both parties. Admittedly, he had preferred

a complaint against the first Appellant and his wife, which ended in an acquittal of the accused. He was also not afraid of the Appellants at the time

of occurrence, though they were wielding dangerous weapons and they were inimically disposed towards him, for quite a length of time. It is also

appears from his evidence, that the deity would be brought to his house during the festival, though on that particular night, he was not aware as to

when exactly the deity halted before his residence. He claims to be devotee, who had contributed funds, but still will expect the court to believe,

that he was not present for the kodai festival. P.W.3 is another inimical witness, whose presence at the scene does not appear natural. His

evidence is in the same category of P.W.1 and we are not prepared to attach any importance to the ocular version of P.W.3. As we have already

stated, his evidence contradicts the medical evidence as well as the manner in which the occurrence could have taken place.

The only other ocular witness is P.W.2, the juvenile daughter of the deceased. Prima facie, a perusal of the evidence of P.W.2, does not reveal

any serious infirmity. However, as stated earlier, it is more probable, that this child, would have been with her maternal uncles at Marukalkurichi

rather than in the scene village. Even if it be that P.W. 2 was available in her village, especially when we have doubted the presence of P. Ws. 1

and 3 her confirming their presence is one serious infirmity in her evidence. A child witness, can be made to speak in a particular pattern, due to

tutoring and coaching. Even if P.W.2 could have been present, we are satisfied that, in the light of other infirmities pointed out by us, it will be

unsafe to record a conviction against the Appellants on the basis of her solitary testimony, which does not even get assurance from medical

evidences. We say no more about P.W.2.

The evidence, of other witnesses, confirms the celebration of Kodai festival at Marukalkurichi on that particular night. Their evidence also

shows that there was enmity between the Appellants and P. Ws. 1 and 3.

Once the basic fabric of the prosecution case does not commend itself for acceptance and infirmities galore are evident, it will be unsafe to

base a conviction on the Appellants merely on the basis of suspicion. It is still more amazing that both the Appellants had parrot-like confessed at

the police station on 7.8.1985 and had taken the police officer to the same place, for seizure of both the weapons. Recovery evidence looks more

artificial than real. We are not prepared to subscribe to the view taken by the learned Sessions Judge. It may be that there was sufficient light at the

scene of occurrence, for the day after the incident, was the full moon day. Merely because there was light, it does not logically follow that the

Appellants are the offenders, for their connection with the crime must be established by acceptable evidence. That is missing in this case.

When we have the eye witness account of only interested and inimical witnesses, prosecution owed a duty to have examined independent

witnesses, who were admittedly available. Atleast Sankaralingam, the night watchman in the noon-meal center, situated opposite to the residence

of the deceased, must have been put into the witness box. P.W. 15 had admitted, that he did not even choose to examine Sankaralingam during

investigation. It is settled law that in a case of this nature, prosecution owed a duty to place before court available independent evidence, which will

help in appreciating the evidence of inimical witnesses in greater detail, on the possibility of accepting or rejecting their versions. Such non-

examination, on the peculiar facts of this case, is yet another grave infirmity.

In our view, Appellants are entitled to the benefit of doubt. Both the Appellants are acquitted. This appeal is allowed.