Kottar and Others vs The State and Others

S. Nagamuthu, J.—The appellants in Crl.A(MD) No. 340 of 2013 are the accused 1 to 6 in S.C. No. 60 of 2013, on the file of the learned Second Additional Sessions Judge, Thoothukudi. The respondents 2 and 3 in Crl.A(MD) No. 393 of 2013 are the accused 7 and 8 in the case. These eight accused stood charged for the offence as detailed below:

By Judgment, dated 07.10.2013, the Trial Court acquitted the accused 7 and 8 and convicted the accused 1 to 6 alone, as detailed below and sentenced them accordingly:

The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the accused 1 to 6 have come up with Crl.A(MD) No. 340 of 2013. Challenging the acquittal of the accused 7 and 8, the de facto complainant/P.W.1 has come up with Crl.A(MD) No. 393 of 2013. That is how, these two appeals are before us.

The case of the prosecution, in brief, is as follows:

"(i) The deceased in this case was one Mr. Balamurugan. P.W.1 is his father and P.W.2 is his brother. Mr. Balamurugan was married to one Renugadevi, three months prior to the occurrence. They were all residing at Subramaniyapuram Village in Thoothukudi District. The accused in this case, are also the residents of Subramaniyapuram Village. The brother of the first accused by name, Mr. Natarajan, was murdered in the year, 2004. In that murder case, one Mr. Ramar was arrayed as an accused. The deceased Mr. Balamurugan took steps for Mr. Ramar, to come out on bail in the said case. It was not to the liking of the first accused. This turned out to be a permanent enmity between the family of the accused and the family of P.W.1.

(ii) So far as the accused are concerned, they also belong to the same family. The second accused is the brother''s son of the first accused; the third accused is the son of the first accused; the fourth accused is the yet another son of the first accused; the fifth accused is the sister''s son of the first accused; the sixth accused is the brother''s son of the first accused; the seventh accused is the elder brother of the first accused and the eighth accused is the brother''s son of the first accused. Thus, they belong to the same family. As stated above, they were inimical towards the deceased family on account of the above incident.

(iii) On 07.09.2012, at about 02.00 p.m., it is alleged that the deceased went in his Hero Honda motor cycle to his farm, where agricultural operation was going on. Actually, he was carrying lunch for the workers. When, he left the house in his motor cycle, P.W.1 and P.W.2 followed him in yet another motor cycle. When the deceased was crossing the bridge at Upakaramathapuram, the first accused suddenly came across the road by wielding a Vel Kambu and he forced the deceased to stop the vehicle. As soon as the deceased stopped the vehicle, the accused 2 to 6 suddenly emerged from both sides of the roads from the hide-outs. The accused 1 to 6 were armed with weapons. They surrounded the deceased and prevented him from proceeding further. The fifth accused cut the deceased on his right side of the neck and left ear; the third accused cut him with aruval on the right cheek, right thigh and right knee; the sixth accused cut him with aruval on the left palm, left forehand and left thumb; the second accused cut him with aruval on his left leg and left buttock and also back side of the neck and the fourth accused cut him with aruval on the left side of the cheek, repeatedly. The first accused did not cause any injury. The accused 7 and 8, though were not present at the time of occurrence, instructed them to commit the murder. The deceased fell in a pool of blood, sustaining as many as 18 injuries all over his body. He died instantaneously. The occurrence was at 02.30 p.m. on 07.09.2012.

(iv) After the occurrence, P.W.1 and P.W.2 were waiting for the arrival of their relatives. After the arrival of their relatives, P.W.1 and P.W.2 went in a motor cycle to Thattarmadam Police Station, which is situated at a distance of about 16 Kilometres. P.W.1 gave a written complaint to the police.

(v) P.W.13, on receipt of the said complaint under Ex. P.1, registered a case in Crime No. 160 of 2012 under Sections 341 , 147 , 148 , 302 and 506(ii) I.P.C. Ex. P.18 is the First Information Report. Then, he forwarded Ex. P.1 and Ex. P.18 through P.W.11 to the Court. The same were received by the learned Judicial Magistrate at Kovilpatti at 02.10 a.m. on 08.09.2012. P.W.13 handed over the Case Diary to the Inspector of Police for investigation.

(vi) P.W.15 took up the case for investigation on 07.09.2012 and reached the place of occurrence at 06.30 p.m. He prepared an Observation Mahazer and a Rough Sketch showing the place of occurrence, in the presence of P.W.7 and another witness. He recovered bloodstained earth and sample earth from the place of occurrence. He also recovered a motor cycle [M.O.5], bearing Registration No. TN-72-A-1804. He also recovered a Nokia Cellphone with sim card [M.O.11]. Then, he conducted inquest on the body of the deceased between 07.30 p.m. and 10.30 p.m. and forwarded the dead body for postmortem.

(vii) P.W.3, Dr. Athikumar, conducted autopsy on the body of the deceased on 08.09.2012, at 12.30 p.m.. He found the following injuries:

"1) A cut injury of about 10 x 4 cm over left lower jaw, bone depth cutting left mandibular gingiva with teeth; dried blood present.

2) A deep cut injury over of about 20 x 4 x bone depth over right side of scalp cutting across right temporal and right occipital area of scalp, dried blood present.

3) Just below 2nd injury, a cut injury of about 8 x 3 x skull depth, cutting across right ear lobe, right TM joint; dried blood present.

4) Just above 2nd injury, a cut injury of about 4 x 2 x scalp depth over right parietal area of scalp; dried blood present.

5) A cut injury of about 3 x 2 x muscle depth over right shoulder, dried blood present.

6) A cut injury of about 8 x 4 x bone depth above right knee, dried blood present.

7) A cut injury of about 3 x 2 x muscle depth below left ear, dried blood present.

8) 3 cut injuries of about 8 x 4 x bone depth and muscle depth below external occipital protuberance dried blood present.

9) A cut injury of about 6 x 3 x bone depth over left scapula dried blood present.

10) Multiple cut injuries of about 2 x 1 x muscle depth to 4 x 2 x muscle depth over the back of chest and abdomen, dried blood present.

11) A cut injury of about 2 x 1 x muscle depth over left gluteal, dried blood present.

12) Multiple linear abrasions of about 15 x 1/2 cm over back of thighs, dried blood present.

13) Skin burns over left gluteal.

14) A cut injury of about 7 x 1 x bone depth over back of left ankle; dried blood present.

15) Two deep cut injuries over left forearm over outer and inner side cutting apart muscles and tendons; dried blood present.

16) A cut injury over base of left thumb - cutting apart the thumb, dried blood present.

17) A cut injury cutting across base of left 2nd, 3rd and 4th fingers; dried blood present.

18) A cut injury of about 3 x 2 x 1 cm below left ear, dried blood present".

Ex. P.2 is the Postmortem Certificate. He gave opinion that the deceased would appear to have died of shock due to haemorrhage and injury to vital organ-brain, about 18 to 24 hours prior to postmortem.

(viii) P.W.15 recovered the bloodstained clothes from the dead body of the deceased. He examined few more witnesses and during the course of investigation, he found the accused 7 and 8 had abetted the commission of the crime. It needs to be mentioned that in the First Information Report, there was no allegation against the accused 7 and 8. Therefore, he altered the case into one under Sections 341 , 147 , 148 , 302 , 506(ii) and 109 I.P.C. and forwarded the Alteration Report under Ex. P.22 to the Court. On 09.09.2012, during the course of investigation, at Thisaiyanvilai Bus Stand, he arrested the accused 2, 3 and 5 in the presence of P.W.9 and another witness. On such arrest, they gave voluntary confessions one after the other. In pursuance of the said confession, the second accused took the police and the witnesses to Vagaineri and produced three aruvals from the hide-out [vide M.O.2 series]. Then, he forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. On 29.09.2012, at Sathankulam Bus Stand, at 08.00 a.m., he arrested the seventh accused and forwarded him to the Court for judicial remand. On 15.10.2012, the sixth accused had surrendered before the learned Judicial Magistrate No. I, Thoothukudi. He took police custody and while in custody at 07.00 a.m. on 16.10.2012, he gave a voluntary confession, in which, he disclosed the place, where he had hidden two aruvals. In pursuance of the same, he took the police and the witnesses to the west of Vagaineri and took out M.O.3 series, aruvals [2 numbers] from the hide-out. P.W.15 recovered the same in the presence of P.W.10 and another witness. On 15.11.2012, the fourth accused had surrendered before the learned Judicial Magistrate, Tiruchendur. Similarly, the first accused had also surrendered. Then, P.W.15 made a request to the Court for forwarding the material objects for Chemical Examination. The opinion revealed that there was human blood of ''B'' Group found on all the material objects including an aruval. But, blood was not found in the other four aruvals. P.W.15 examined the Doctor and collected medical records. Finally, on completing the investigation, he laid charge sheet against all the eight accused."

Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of this Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as, 15 witnesses were examined and 22 documents were exhibited, besides 14 Material Objects.

Out of the said witnesses, P.W.1 and P.W.2 are the eye witnesses to the occurrence. They have vividly spoken about the entire occurrence. P.W.3, Dr. Athikumar, has spoken about the postmortem conducted by him and his final opinion regarding cause of death. P.W.4 is the Head Clerk of the Judicial Magistrate''s Court, who has stated that he forwarded the material objects to the Forensic Lab for Chemical Examination on the orders of the learned Judicial Magistrate. P.W.5 is the mother of the deceased, who has not stated anything incriminating the accused. P.W.6 is a villager, who has stated that on 07.09.2012, around 03.30 p.m., he saw the accused 2, 3 and 5 together elsewhere. P.W.7 has spoken about the Observation Mahazer and the Rough Sketch prepared and also the recovery of the material objects from the place of occurrence. P.W.8 has stated that on 05.09.2012, he found that the accused 2, 4, 7 and 8 conversing among themselves to do away with the deceased. P.W.9 is the Village Administrative Officer, in whose presence, accused 2, 3 and 5 were arrested on 09.09.2012. He has further stated that on the disclosure statement made by the second accused, three aruvals were recovered. P.W.10 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.11 is the Constable, who carried the First Information Report from the Police Station. According to him, he received the First Information Report from the Sub Inspector of Police at 06.30 p.m. on 07.09.2012 and he straight away went to Sathankulam and since the learned Judicial Magistrate, Sathankulam, was on leave, from there, he went to Kovilpatti and handed over the First Information Report to the Jurisdictional Judicial Magistrate at 02.10 a.m. on 08.09.2012. P.W.12 is yet another Constable, who has stated that he carried the dead body from the place of occurrence to the hospital for postmortem. P.W.13 has spoken about the complaint made by P.W.1 and the case registered on the said complaint. P.W.14 has spoken about the confession said to have been made by the sixth accused and the consequential recovery of aruvals. P.W.15 has spoken about the investigation done and the final report filed.

When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witness on their side nor to mark any document. Their defence was a total denial. Having considered all the above materials, the Trial Court convicted the accused 1 to 6 alone and acquitted the accused 7 and 8. That is how, these two Criminal Appeals are before us challenging the said Judgment.

We have heard the learned senior counsel, Mr. V. Kathirvelu, appearing for the appellants in Crl.A(MD) No. 340 of 2013, the learned counsel appearing for the appellant in Crl.A(MD) No. 393 of 2013 and the learned Additional Public Prosecutor, appearing for the State. The learned senior counsel, Mr. V. Kathirvelu, appears for the accused 7 and 8, who are the respondents 2 and 3 in Crl.A(MD) No. 393 of 2013. We have also perused the records carefully.

The learned senior counsel appearing for the accused would submit that there was inordinate delay in preferring the complaint and also in forwarding the same to the Court. He would further submit that the said delay has not been explained away at all, satisfactorily. He would further submit that P.W.1 has stated that the complaint was drafted by his relative at the Police Station. The learned senior counsel has taken us through the evidences of P.W.1 and P.W.2, wherein they have stated that they were waiting for the arrival of their relatives and after their arrival, they went to the Police Station in a motor cycle and thereafter, the complaint was made. He would submit that in the First Information Report, there is nothing stated about the accused 7 and 8. He would further submit that the entire family of the accused have been roped in the case, leaving out no other male member. The very fact that the entire family of the accused has been arrayed as accused, would go to show that the delay in preferring the complaint and the delay in forwarding the same to the Court, assumes much importance. The learned senior counsel would next contend that the Doctor, who conducted autopsy, has stated that there was undigested food materials found in the stomach of the deceased. But, P.W.1, now has stated that before leaving the house, the deceased had just taken food, but it was not stated by him either in the First Information Report or in his statement made, during the course of investigation. He has been duly contradicted by these two statements and he has not offered any explanation for not having mentioned it in the said statement. The learned senior counsel would submit that the reasons for P.W.1 and P.W.2 to follow the deceased, has not been stated. Their presence is by chance. There was no investigation done in respect of the cellphone found at the place of occurrence and the fact that whether it belongs to the deceased or the assailants, has not been examined. The motor cycle, in which, P.W.1 and P.W.2 are stated to have gone to the place of occurrence, also has not been recovered, the learned senior counsel contended. For all these reasons, according to the learned senior counsel, the prosecution has failed to prove the case beyond reasonable doubts and therefore the appellants are entitled for acquittal.

The learned Additional Public Prosecutor would vehemently oppose the appeal against the conviction filed by the accused 1 to 6.

The learned counsel for the appellant in Crl.A(MD) No. 393 of 2013 would submit that the acquittal of the accused 7 and 8 is not correct. He would further submit that the delay in preferring the complaint and in forwarding the First Information Report to the Court, has been duly explained away by the prosecution and on that score, there can be no doubt regarding the case of the prosecution. He would next contend that the presence of P.W.1 and P.W.2 at the place of occurrence has been duly explained away and therefore their presence cannot be doubted. He would submit that P.W.1 and P.W.2 have vividly spoken about the entire occurrence, more particularly, about the overt acts of accused 1 to 6. Regarding the undigested food materials found in the stomach of the deceased, according to the learned counsel, P.W.1 has stated that just before leaving the house, he had taken food. So far as, the non-recovery of motor cycle, in which, P.W.1 and P.W.2 had gone, according to the learned counsel as well as the learned Additional Public Prosecutor, it is immaterial. The reason for P.W.1 and P.W.2 to follow the deceased, according to the learned counsel, has been explained away. It is true that there was no investigation done in respect of the cellphone found at the place of occurrence, the learned counsel submitted, but it is immaterial, he added. At any rate, the learned counsel for the appellant in Crl.A(MD) No. 393 of 2013, would submit that the acquittal of the accused 7 and 8 is illegal and therefore the same should be reversed and they should be punished accordingly.

The learned Additional Public Prosecutor would pray for dismissal of the appeal in Crl.A(MD) No. 340 of 2013 and for confirmation of the conviction and sentence imposed on the appellants 1 to 6/accused 1 to 6.

We have considered the above submissions and we have also perused the records carefully.

The alleged occurrence was at 02.30 p.m. on 07.09.2012. The distance between the place of occurrence and Thattarmadam Police Station is 16 Kilometres [vide First Information Report]. But, the complaint has been made with a delay of 2 1/2 hours, after the occurrence. The explanation offered by P.W.1 and P.W.2 is that they were waiting for the arrival of their relatives and after their arrival, they went to the Police Station in a motor cycle, where, they made a complaint. But, P.W.2 has stated that he went in a car belonging to a relative to the Police Station. The relatives had also come to the Police Station. P.W.2, during cross-examination, has admitted that the complaint was drafted by one of the relatives. But, that relative has not been examined at all. In our considered view, the delay of 2 1/2 hours in preferring the complaint, creates initial doubt in the case of the prosecution.

Had it been true that the First Information Report was really registered at 05.00 p.m., the same would not have taken about 9 hours and 10 minutes to reach the hands of the learned Judicial Magistrate. P.W.11 is the Constable, who carried these documents to the house of the learned Judicial Magistrate. He has made an explanation for the delay. He has stated that at 06.30 p.m. on 07.09.2012, he received the First Information Report and the complaint from the Sub Inspector of Police. Then, he went by a motor cycle to Sathankulam. Admittedly, the distance between Thattarmadam and Sathankulam is hardly 11 Kilometres. It would not have taken more than half-an-hour for him to reach Sathankulam. According to him, at Sathankulam, he came to know that the learned Judicial Magistrate was on leave and also came to know that the learned Judicial Magistrate, Kovilpatti was incharge. The distance between Sathankulam and Kovilpatti is around 100 Kilometres. This fact has been verified by this Court from the Sub Inspector of Police, who is present in Court and yet another Sub Inspector of Police, from the very same District, who is also present before this Court. The learned counsel appearing for the appellant in Crl.A(MD) No. 393 of 2013 as well as the learned Additional Public Prosecutor are not in a position to dispute the said fact. The learned senior counsel would also concede that the distance between Sathankulam and Kovilpatti is around 100 Kilometres. The learned senior counsel has taken us through the evidence of P.W.11, wherein during cross-examination, he has stated that it would take hardly 1 1/2 hours to go to Kovilpatti from Tirunelveli and almost it would take 2 hours to go to Kovilpatti from Sathankulam. The Sub Inspector of Police, who is present in Court, would also state that almost it would take more than 2 hours for anyone to reach Kovilpatti from Sathankulam. Assuming that, it is true that one can say that it would take 3 to 4 hours to reach Kovilpatti, the First Information Report should have reached the hands of the learned Judicial Magistrate, at least by 10.00 p.m. on 07.09.2012. But, it had reached the hands of the learned Judicial Magistrate only at 02.10 a.m. on 08.09.2012. Thus, in our considered view, the explanation offered by P.W.1, is difficult to be accepted. This creates doubt as to whether the First Information Report would have been really registered at 05.00 p.m. itself or not. The Hon''ble Supreme Court in an identical situation in Marudanal Augusti Vs. State of Kerala, , has held that unexplained delay in preferring the complaint and in forwarding the First Information Report to the Court creates doubt in the genuineness of the allegations made in the complaint. The delay in either registering the case or in forwarding the First Information Report to the Court, may not loom large in every case.

But, in a case, where there are multiple number of accused, the delay assumes much importance. The delay needs to be explained away to the satisfaction of the Court. But, in this case, unfortunately, as we have already pointed out, the delay has not been explained away. This, further strengthens the doubt, in the case of the prosecution.

In the First Information Report, there were only six accused mentioned. All the six people belong to the same family. The accused 7 and 8 were later on added as accused by altering the First Information Report and they were arrayed as accused in the Final Report. This would give an indication that the prosecution party were not satisfied with the inclusion of the accused 1 to 6 and to leave out the accused 7 and 8. Therefore, it appears that they have implicated the accused 7 and 8 also, at a later stage. It would go to show that an attempt has been made by P.W.1 and P.W.2 to rope in the entire family members of the accused.

The next important circumstance is the presence of P.W.1 and P.W.2 at the place of occurrence. The occurrence had not taken place anywhere near the house of P.W.1 and P.W.2. It was on the road surrounded by fields. There are no habitation anywhere near the place of occurrence. The presence of P.W.1 and P.W.2 at the place of occurrence, was by chance. It is too well settled that if a witness claims to have been present at the place of occurrence by chance, the reasons for his presence, at the place of occurrence, should be explained to the satisfaction of the Court. Here, in this case, we find that there is no explanation at all offered by P.W.1 and P.W.2 as to why they were present at the crucial point of time. They have stated in one voice that after the deceased had left in a motor cycle, they followed him in their motor cycle. It is not explained as to why they followed him in yet another motor cycle. Thus, the prosecution has failed to explain as to what made P.W.1 and P.W.2 to be present at the place of occurrence. Thus, the presence of P.W.1 and P.W.2 at the place of occurrence itself, is doubtful. There is yet another reason to hold so. Though, it is alleged that P.W.1 and P.W.2 followed in yet another motor cycle, the said motor cycle has not been seized at all, by the police. The motor cycle was not found at the place of occurrence also. There is no investigation done in respect of the motor cycle.

Yet another important piece of evidence available on record, is the presence of a cellphone at the place of occurrence. P.W.1 and P.W.2 have not claimed that the said cellphone [M.O. 11] belonged to the deceased. P.W.15, the Investigating Officer, has admitted during cross-examination that he did not conduct any investigation in respect of the cellphone. Further, he has stated that it belonged to the deceased. Whether it belonged to the deceased or not, is a matter to be stated by P.W.1 and P.W.2 and not by P.W.15, as he is not competent to say about the same. Above all, according to the defence, the cellphone was that of one of the assailants. Had there been any proper investigation done by getting the connected records pertaining to the ownership of the cellphone and the call details, certainly, the truth would have come to light. Unfortunately, the Investigating Officer has failed to do any investigation, regarding the said cellphone.

The learned senior counsel would point out that there were undigested food materials found in the stomach of the deceased, as spoken by the Doctor, who conducted autopsy. P.W.1, during examination, has stated that, just before leaving the deceased, had lunch at his house. But, he did not say so either in the First Information Report or in his statement during investigation. Though, he was contradicted by means of Ex. P.1 as well as his statement made to P.W.15 in respect of the above, he did not have any explanation to offer. Therefore, as rightly pointed out by the learned senior counsel, it is only an improvement made by P.W.1 to suit the opinion of the Doctor. Thus, in our considered view, the presence of the undigested food in the stomach, which would have given a clue about the occurrence, has not been properly investigated by the police.

P.W.1 and P.W.2 are not only interested. They are also inimical witnesses. Their presence at the place of occurrence was by chance. As we have already pointed out, their presence is doubtful. Going by the strong enmity between the two families and going by the fact that not even a single male member from the accused family has been left out and all the eight male members have been implicated in the case, would go to show that everything that is stated by P.W.1 and P.W.2, is not true. Though, it may be true that some of the accused were the assailants. But, this Court finds it difficult to separate the grain from the chaff and therefore it is difficult to find any of the accused guilty. Since, truth and falsehood are intrinsically mixed up with each other, we find it difficult to sustain the conviction of any of the accused. As we have already pointed out, there are lot of doubts in the case of the prosecution. Though, it is a brutal murder, we are unable to sustain the conviction of the accused for want of sufficient evidence. We hold that the prosecution has failed to prove the case beyond reasonable doubts and therefore all the accused are entitled for acquittal.

In the result,

"(i) Crl.A(MD) No. 340 of 2013 is allowed; the conviction and sentence imposed on the appellants/accused 1 to 6, by the learned Second Additional Sessions Judge, Thoothukudi, made in S.C. No. 60 of 2013, dated 07.10.2013, is set aside and the appellants/accused 1 to 6 are acquitted. The fine amount, if any, paid by them, shall be refunded to them. Bail bonds executed by the appellants 1 to 6/accused 1 to 6 and the sureties shall stand terminated. Consequently, connected Miscellaneous Petitions are closed.

(ii) Crl.A(MD) No. 393 of 2013 is dismissed and the acquittal of the respondents 2 and 3/accused 7 and 8 is hereby confirmed."