M. Ramasamy and Others vs State

S. Nagamuthu, J.—The appellants in these appeals are the accused 1 and 2 in S.C. No. 82 of 2012 on the file of the learned Sessions Judge, Trichy Division at Trichy. The first accused stood charged for the offence under Section 302 IPC and the 2nd accused stood charged for the offence under Section 302 r/w 114 IPC. By judgment dated 03.10.2012, the trial Court convicted the 1st accused under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for 6 months and convicted the 2nd accused under Section 302 r/w 114 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for 6 months. Challenging the said conviction and sentence, they are before this Court with these appeals.

The case of the prosecution in brief is as follows:

"The deceased in this case was one Mr. Venkatesan. He was a resident of Andal Nagar, Keela Ambikapuram, Ariyamangalam, Trichy. It is alleged that A1 has a sister by name Keerthana. Some time before the occurrence, it is alleged that the deceased had given his phone number to Keerthana. This was not to the liking of the 1st accused. This is stated to be the motive for this occurrence. The 2nd accused is a friend of the 1st accused. It is alleged that on 14.01.2012, the deceased was standing in front of the Maligai shop by name Lakshmi Maligai Shop at Andal Nagar. At that time, the 1st accused and his friends came there, developed quarrel with the deceased and attacked him with sugar cane. The deceased returned to his house. The accused also fled away from the said place. "

2.1. After returning to his house, the deceased changed his dress and after some time, told his mother (P.W.3) that he was going to the bazaar. When he reached again the said Maligai shop, the accused 1 and 2 appeared there. On seeing the deceased, the 2nd accused caught him hold by his hands and the 1st accused stabbed him with knife twice. On hearing the hue and cry raised by the people standing there, P.W.3, who was in her house, rushed towards the place of occurrence. The occurrence was witnessed by P.Ws. 1 and 2 also. Thereafter, P.Ws. 1 and 2 took the deceased to the Government Hospital at Trichy. At 9.35 p.m., the Doctor (not examined) examined the deceased. At that time, the deceased was unconscious. P.Ws. 1 and 2 told the Doctor that the deceased was assaulted by two unknown persons with ''Aram'' on 14.01.2012 at 8.45 p.m. near his house. The Doctor found him dead. Then, he gave intimation to the police and kept the body in the mortuary. P.W.1, thereafter, went to Ariyamangalam Police Station on 14.01.2012 at 10.30 p.m., and made a complaint to the police.

2.2. P.W.13 the then Sub Inspector of Police Ariyamangalam Police Station registered a case on the said complaint in Crime No. 36 of 2012 under Sections 302 IPC. Ex. P18 is the FIR. She forwarded both the documents to Court and handed over the investigation to the Inspector of Police.

2.3. P.W.14 took up the case for investigation on 14.01.2012 and proceeded to the place of occurrence immediately. At 11.30 p.m., he prepared an observation mahazar and rough sketch in the presence of P.Ws. 7 and 8. He recovered bloodstained earth and sample earth under a mahazar in the presence of the same witnesses. Then, on reaching the hospital, he conducted inquest on the body of the deceased between 6 am and 9 am on 15.01.2012 and then forwarded the body for postmortem.

2.4. P.W.11 Dr. Renuka Devi conducted autopsy on the body of the deceased on 15.01.2012 at 12.25 p.m. She found the following injuries:

"1. A Penetrating stab wound, 5 cm x 1 cm x cavity deep on the front of left side of the neck - wound of entry. O/E. The edges are clean cut inverted. The muscles, blood vessels and nerves are clean cut. Wind pipe, food pipe are clean cut.

A penetrating stab wound, 2 cm x 0.5 cm x cavity deep on the front of right side of the neck - wound of exit. O/E. The edges are clean cut and everted. The above mentioned wounds are antemortem. No other external, internal or bony wound."

Ex. P14 is the postmortem certificate. According to her, the deceased had died of shock and hemorrhage due to stab injuries to neck.

2.5. P.W.14 recovered the bloodstained clothes from the body of the deceased and forwarded the same to the Court. Then, he handed over the investigation to his successor.

2.6. P.W.16 continued the investigation on 19.01.2012. The 1st accused had surrendered before the learned Magistrate at Koilpatti. On 25.01.2012, he took the custody of the 1st accused from Court on the orders of the learned Magistrate. While in custody, on 27.01.2012, in the presence of P.W.8 and another witness, the 1st accused gave a voluntary confession, in which, he disclosed the place, where he had hidden the knife. In pursuance of the same, he took the police and the witnesses to the said place and produced the knife (M.O.1) and then, he forwarded the accused to the Court and also handed over the material objects. The 2nd accused also surrendered before the Court. He took custody of the 2nd accused on 02.02.2012. But, no discovery of any fact was made out on his statement. He made a request to the Court to forward the material objects for chemical examination. The report revealed that human bloodstains were found on the same. He examined few more witnesses collected chemical reports and finally, laid charge sheet against the accused.

2.7. 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 16 witnesses were examined, 31 documents and 15 material objects were marked.

2.8. Out of the said witnesses, P.Ws. 1 to 3 and 15 were examined as eye witnesses. But P.Ws. 1, 2 and 15 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.3 is the mother of the deceased. She has stated that while she was at her home, she heard a hue and cry and when she went to the place of occurrence, she found the 2nd accused holding the deceased and the 1st accused stabbing the deceased. P.W.4 has not stated anything incriminating against the accused. He has stated that he came to the place of occurrence on intimation from the mother of the deceased. P.W.5 is an official from the Tamil Nadu Electricity Board, who has stated that there was no failure of electricity at the place of occurrence, at the time of occurrence. P.W.6 has stated about the quarrel, which had taken place before the occurrence, which is the cause for the present occurrence. P.Ws. 7 and 8 have spoken about the observation mahazar prepared, rough sketch and the recovery of material objects from the place of occurrence. P.W.9 has spoken about the scientific analysis conducted on the material objects. P.W.10 is the Village Administrative Officer, who has spoken about the confession said to have been given by the 1st accused and the consequential recovery of M.O.1 from his possession. P.W.11 has spoken about the postmortem conducted and his final opinion regarding the cause of death. P.W.12 is the Constable, who carried the dead body for postmortem. P.W.13 has spoken about the registration of the case on the complaint of P.W.1. P.Ws. 14 and 16 have spoken about the investigation done.

When the 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 witnesses nor to mark any documents. Having considered all the above, the trial Court convicted them and accordingly punished them. That is how, they are before this Court with these appeals.

We have heard the learned counsel for the appellants, the leaned Additional Public Prosecutor for the State and we have also perused the records carefully.

In this case, the prosecution relies only on the evidence of P.W.3 the mother of the deceased, who has stated that she witnessed the occurrence. The learned counsel for the 1st accused would submit that P.W.3 would not have seen the occurrence at all. He would further submit that there is no corroboration from any quarters to the evidence of P.W.3. He would point out that the so called other witnesses, namely, P.Ws. 1, 2 and 15 have turned hostile and they have not supported the case of the prosecution. Therefore, according to the learned counsel, the appellants are entitled for acquittal.

But the learned Additional Public Prosecutor would, vehemently, oppose these appeals. According to him, though P.Ws. 1, 2 and 15 have turned hostile, the evidence of P.W.3 is cogent and convincing. Therefore, the trial Court was right in convicting the accused based on the solitary evidence of P.W.3, which has been corroborated by the medical evidence.

We have considered the above submissions.

Admittedly, at the time occurrence, P.W.3 was at her house. She has stated that the deceased returned to his house, changed his dress and went out of the house telling that he was going to the bazaar. It is not as though she followed the deceased to the bazaar. While she was at her home, she heard the hue and cry. She has admitted in her evidence that from her house, one cannot see the occurrence. The rough sketch (Ex. P19) produced would also go to show that her house is situated on the south of Andal Street, which runs in the west to east direction. The said road, at the east, joins Andal Main street. The Andal Main Street runs in the north south direction. The place of occurrence, namely, Lakshmi Maligai Store is situated on the western side of the said road at a considerable distance from the junction, where Andal Street branches off. Having regard to the distance between the Lakshmi Maligai store and the junction and the distance between the house of the deceased and the junction, P.W.3 herself has admitted in her evidence that one cannot see the occurrence from her house. The question is whether she would have witnessed the occurrence. She has stated that she came out of her house only after hearing the alarm raised. Going by the distance, it is crystal clear that it would take considerable time to reach the place of occurrence. There were only two stab injuries on the deceased. It is not as though the occurrence went on for a considerable period of time. On seeing the deceased, according to the case of the prosecution, the 2nd accused caught hold and the 1st accused caused 2 stab injuries and fled away from the scene of occurrence immediately. Therefore, the alarm would have been raised only at the time of occurrence. After hearing the alarm, had it been true that P.W.3 rushed to the place of occurrence, she would not have seen the occurrence at all. But, during the cross examination, she has stated that she saw the occurrence from the junction of the road, whereas, according to her earlier version, the occurrence commenced only after she reached the place of occurrence. This contradiction has been established by the defence. For these reasons, in our considered view, it is doubtful to believe P.W.3.

At this juncture, we need to state that there is no legal impediment to convict the accused, solely, relying on the solitary evidence of an eye witness. But, it all depends upon the fact as to whether the evidence of the solitary witness would inspire the confidence of the Court or not. In the event, the evidence of the solitary witness is shrouded with doubts, then, as a rule of prudence, the Court shall look for corroboration from the independent sources. Here, in this case, there is no other independent evidence available to corroborate the evidence of P.W.3. As we have already pointed out, P.Ws. 1, 2 and 15 have turned hostile. Therefore, going by the above doubts, in our considered view, it is not possible to sustain the conviction. In this regard, we may refer to the Hon''ble Supreme Court in Vadivelu Thevar Vs. The State of Madras, . Wherein, the Hon''ble Supreme Court has held that in a case, a witness is partly believable, then, as a rule of caution, the Court should look for corroboration from independent sources. In the instant case, as we have already pointed out, the evidence of P.W.3 is not fully believable, as it is shrouded with doubts and since there is no other evidence from any independent sources to corroborate the evidence of P.W.3, in our considered view, it is not safe to sustain the conviction of the accused based on the said uncorroborated solitary evidence of P.W.3 alone. In such view of the matter, we have no option, but to set aside the conviction and sentence imposed on the appellants.

In the result, the criminal appeals are allowed, the conviction and sentence imposed on the appellants are set aside and they are acquitted from all the charges. Fine amount, if any paid by them, shall be refunded to them. Bail bond shall stand terminated.