Madan vs The State

N. Arumugham, J.—This appeal is directed, challenging the correctness and validity of the judgment of conviction and sentence of Life

Imprisonment for the offence u/s 302 of Indian Penal Code awarded against the accused by the learned Sessions Judge, Dharmapuri District at

Krishnagiri in Sessions Case No. 80/86 dated 28-10-1997.

P.W. 6 by name Nallammal alongwith her husband Kannu Naidu, the deceased herein and P.W. 1 by name Chinnasamy, the son in law of the

above two persons were the residents of Moongampatti village, within the jurisdiction of Mathur police station in Dharmapuri District. The accused

Mathan is the younger brother of the deceased Kannu Naidu. It was stated that the daughter of one Kannammal, who is the sister of the deceased

Kannu Naidu, was given in marriage to the accused P.W. 2 by name Mathaian belongs to Athikanoor Village. P.W. 4 by name Sub-ramani is the

resident of Aalarapatti village and is working as a farm-servant under one Madhava Chettiar. P.W. 8 by name Nandi Gounder belongs to Mathur

Village. P.W. 10 by name Munusamy who is the resident of Chakkilipatti has taken the lease of mango grove which belongs to Kannammal, the

sister of the deceased Kannu Naidu. P.W. 11 is running a cycle-shop at Kannadhahalli.

There were a log of civil and criminal cases pending between the deceased Kannu Naidu and his younger brother, the accused herein. It was

claimed by the prosecution that Kannammal the sister of Kannu Naidu, deserted her husband and was living in the house, next to the house of the

deceased at Mathur village for 20 years. A criminal case was filed against the deceased Kannu Naidu and his son that they had cut the hand of

Kannammal in 1984. It was also claimed that the said Kannammal was having illicit connection with the Nagan and when the deceased Kannu

Naidu enquired about this, a land was settled in the name of Kannammal by the said Nagan. However, after the death of Nagan, Kannu Naidu

insisted that Kannammal should live with her husband. But she refused and resided by the next house of Kannu Naidu at Moongampatti village.

Two months prior to the occurrence, in the joint road at Kannandahalli when P.W. 10 Munusamy happened to meet Kannu Naidu, he was

informed by Kannu Naidu that there were lot of civil and criminal cases pending in-between himself and his brother and because of his sister

Kannammal, he had to go to Court very often, and so he should put an end to all these. Three days thereafter, when P.W. 10 met the accused he

advised him not to pursue any litigation and to go amicably with his brother Kannu Naidu. Fifteen days prior to the date of occurrence, the land

belonging to Kannammal, but in the possession of Kannu Naidu and his son, was said to have been leased to one Kaliappan and that in this

context, Kannu Naidu, his wife P.W. 6 and their son by name Anandan trespassed into the land and to this extent, the said Kannammal had given

a complaint to the police. Seven days thereafter, Kannu Naidu had been to P.W. 8 by name Nandi Gounder and stated that the accused was

threatening him to murder him within a short period.

On 13-5-1986, Tuesday, the deceased informed his wife P.W. 6 Nallammal that he had to go to Kannandahalli by his bicycle and then to

Krishnagiri by bus and he took his bicycle M.O. 2 and left the village. Accordingly, he left M.O. 2 bicycle in the cycle-shop of P.W. 11 and went

to Krishnagiri by bus. He returned at 5:00 p.m. on the some day by bus and came to the cycle-shop of P.W. 11 and took his bicycle M.O. 2 and

then went to his house. It was the usual practice for the deceased Kannu Naidu of leaving the bicycle in P.W. 11''s cycle shop while going to

Krishnagiri by bus. On 13-5-86, when P.W. 8 Nandi Gounder was waiting in the joint road of Kannandahalli, he saw the accused coming in a

bicycle with blood stained koduval M.O. 1 and proceeded through the way to Mathur P.W. 1 informed P.W. 6 that at about 6:00 p.m. on that

date, the accused, after having cut Kannu Naidu on several parts of his body, has taken his bicycle and went away. At once, P.W. 6 alongwith

others reached the scene of crime and saw the deceased Kannu Naidu with several cut and bleeding injuries on his body, Red colour bordered

green turkey towel belonging to the accused M.O. 3 was lying near the dead body of the deceased.

P.W. 3, the village menial, while he was returning after the collection of revenue, by about 5:30 p.m. on the day of occurrence through a shortcut

route, came to know that Kannu Naidu, was murdered and he went near and saw the dead body of Kannu Naidu lying with 11 or 12 cut injuries

near the land of one Madha Chettiar. Therefore, he went and reported the matter to the village Administrative Officer of Kannandahalli.

P.W. 7 by name Ramalingam, the village Administrative Officer, on getting the information referred through P.W. 3, reached the scene of crime

and after having verified, prepared Ex.P. 1 and sent the same through P.W. 3 to Mathur police station. On 13-5-86, P.W. 14, the Sub Inspector

of Police who was on duty at Mathur Police Station, received the said report Ex.P. 1 by 7:00 p.m. and registered a case in crime No. 37/86 of his

police station for the offence u/s 302 of Indian Penal Code and prepared Express Reports and printed FIR and sent the same to the Judicial

Magistrate''s Court and to the higher officials. Ex.P.W. 17 is the said Express Report. Then, he informed the Inspector of Police, Burgur through

V.H.F. regarding this case. It was stated that the accused appeared before Mathur Police Station with M.O. 1 blood stained Aruval at about 7:45

p.m. and he was arrested in the presence of P.W. 9 Annamalai and another and a statement was recorded. P.W. 14, then recovered M.O. 1

produced by the accused, under recovery mahazar Ex.P. 4. M.O. 2 Bicycle brought by the accused was also recovered under Form-95 as well as

recovery mahazar Ex. P5. The Blood stained Shirt M.O. 4, Baniyan M.O. 5, Lungi M.O. 6, which the accused was wearing at that time, were

recovered under recovery mahazar Ex.P. 6 by P.W. 14, attested by P.W. 8 and another.

The Inspector of Police, Burgur circle by name Rajan P.W. 16, on receipt of the information of the registration of this crime by about 7:10 p.m.

on that day, went to the scene of crime by 8:00 p.m. on that day and received the Express Report from P.W. 14. Then, he conducted inquest over

the dead body of Kannu Naidu in the presence of panchayatdars and other witnesses till mid-night and prepared Inquest Report Ex.P. 20. He

recorded the statements of P.W. 1 to 4, P.W. 6, P.W. 7 to 11. On 14-5-86 at about 7:00 a.m. the dead body of Kannu Naidu was

photographed by P.W. 15 in nine angles. Negatives are M.O. 21 series and the photographs are M.O. 22 series. The scene of crime was also

photographed. P.W. 16, then prepared and observation Mahazar Ex.P. 7 and got it attested by P.W. 9 and another.

On receipt of the requisition by about 2:15 p.m. on 14-5-86, P.W. 5 Dr. Meena, attached to Government Hospital, Arur, conducted the

autopsy over the dead body of Kannu Naidu by about 3:00 p.m. on that day, she found the following injuries :

External injuries :-

(1) An incised wound in front and both sides of the neck involving the skin, facial muscles trachea, oesophagus and both carotid arteries of veins

vertebral columns of spinal cord, leaving the skin alone at the back.

(ii) An incised wound on the right cheek obliquely placed 4 cm x 2 cm x bone deep.

(iii) An incised wound right occipital region 4 cm x 2 cm x bone deep.

(iv) An incised wound on the left occipital region 3 cm x 2 cm x bone deep.

(v) An incised wound on the right upper arm, obliquely placed middle 1/3rd 4"" x 2"" x bone deep.

(vi) One inch below the injury No. 3, an incised wound on the right upper arm 4 cm x 2 cm x bone deep.

(vii) An incised wound on the left fore arm 4 cm x 2 cm x bone deep.

(viii) An incised wound on the left dorsal aspect of the hand in between the wrist and little finger 5 cm x 2 cm x bone deep.

(ix) An incised wound above the wrist x 2 cm x 2 cm x bone deep.

(x) An incised wound on the right leg middle 1/3 obliquely 5 cm x 2 cm x bone deep.

(xi) A lacerated wound 2"" below the suprasternal notch 1 cm x 1 cm x bone deep.

The doctor P.W. 5 has opined that the deceased would appear to have died of shock and haemorrhage about 22 to 23 hours prior to autopsy,

due to multiple injuries. She had also opined that all the injuries above referred could have been caused by cutting with a weapon like M.O. 1

Koduval and the injury No. 1 with its corresponding internal injury is necessarily fatal and death would have been instantaneous in this case. Ex.P.

3 is the post mortem certificate given by this witness. After the autopsy, the shirt M.O. 17, Underwear M.O. 18, waist chord M.O. 19 dhothi

M.O. 20 were all recovered from the dead body and handed over to the police station, which was recovered under from 95 and Ex.P. 12

Mahazar by the Sub Inspector of Police P.W. 14. On 14-5-86 P.W. 16 drew a rough sketch Ex.P. 21 showing the topography of the place of

crime and he recovered towel M.O. 3, Match box M.O. 13 from the place where dead body was found under the cover of Mahazar Ex.P. 10

and got it attested by the witnesses and at about 7:45 a.m. on that day, he recovered a wound certificate M.O. 7, Diary with plastic cover M.O. 8.

Bus ticket M.O. 9, Rs. 1 currency with coins to the extent of 55 p. M.O. 10 series, and Rs. 113/- M.O. 11 series from the shirt of the deceased

under the cover of mahazar Ex.P. 8 attested by the same witnesses. Then at about 8:00 a.m. at a place, which is 10 feet away from the dead body,

he recovered M.O. 12 a bit of burnt beedi under the cover of mahazar Ex.P. 9 and attested by P.W. 9 and another. In the same morning at about

8:30 a.m. the blood stained hair M.O. 14, blood stained earth M.O. 15, sample Earth M.O. 16 were also recovered under mahazar Ex.P. 11 by

P.W. 16 attested by the same witnesses.

On 1-3-86, a complaint given against one Anandan, the son of the deceased Kannu Naidu and 3 others was registered in crime No. 6/86 for

the offences under Sec. 147, 323, 324, 427 of Indian Penal Code. P.W. 14, after investigation, laid the final report and that case was pending at

that time. The First Information Report of that case is marked at Ex.P. 18. Then another complaint given by one Kaliappan, son of Rama Gounder

of Thiruvayalur village dated 27-4-86 against the deceased, his wife and their son for having trespassed into his lands was also received and

recorded by this witness in crime No. 39/86 and the said complaint was marked as Ex.P. 19.

On 14-5-86, P.W. 16 arrested the accused and remanded him to Judicial Custody and gave a requisition record the statement of the accused

under Sec. 164 of Criminal Procedure Code. He also gave a requisition Ex.P. 13 to the Court requesting to subject the case properties for

chemical examination and accordingly the Head Clerk P.W. 13 of the Uttankarai Judicial Magistrate''s Court, duly packed M.O. 1, M.O. 4 to

M.O. 6, M.O. 14 to 20 in the presence of the Judicial Magistrate properly sealed and sent them along with the original covering letter of Ex.P. 14

for chemical examination and the chemical Examiners Report Ex.P. 15 and the Serologist''s report Ex.P. 16 were received. After having thus

investigated the whole case, P.W. 16 filed a final report against the accused in the Court of law on 14-8-86.

The accused had admitted the fact with regard to the relationship existed among the prosecution witnesses and himself and that the land

belonging to him mother-in-law was leased out to P.W. 10 and that she was not living with her husband, but living alone at Moongampatti village,

when questioned by the learned Sessions Judge u/s 313(1)(b) of Code of Criminal Procedure. But however, he denied the entire allegations made

against him by the prosecution and his very involvement and complicity in total. However, he did not examined any witness on his behalf.

After having recorded the oral evidence adduced by the prosecution through P.W. 1 to 16 and the documents Ex.P. 1 to 23 with marking of

M. Os. 1 to 22, the learned trial Judge has come to the conclusion that the prosecution had proved the guilt and complicity of the accused beyond

all reasonable doubts and rendered the impugned judgment, convicting the accused and sentencing him to undergo rigorous imprisonment for his

life and it is this judgment, being challenged for want of its correctness and legality in this appeal.

We have heard the counsel for the appellant assailing the very impugned judgment on very many grounds and on the contra by Mr.

Anbazhagan the learned Additional Public Prosecutor justifying the impugned judgment of conviction.

One of the main contentions raised by the learned counsel for the appellant Mr. Vanamamalal while assailing the impugned judgment was that

the learned trial judge deliberately failed to see that there was no cogency of circumstances which incriminates or involves the accused for the

commission of the offence in this instant case and there is no nexus existed between the accused and crime alleged and that the said infirmity is

totally against the settled principles of law and therefore, the impugned judgment is liable to be set aside on this ground alone. The second attack

by the learned counsel for the appellant against the impugned judgment is that the three circumstances spoken to, by the prosecution witnesses are

seriously doubtful and all the witnesses who spoke about the circumstances have not come with clean hands. On a careful scrutiny of their version,

it will be manifested that their claim is flimsy and only imaginary, made out of malice and motive. The third (sic) a one the learned senior counsel for

the appellant pointed out is that the complicity and guilt of the accused has not at all been projected and proved by the prosecution in the instant

case, either by direct evidence or circumstantial evidence and that, therefore, the judgment of conviction and sentence under this appeal is with

every legal defect and therefore, is liable to be set aside.

The arguments advanced by and on behalf of the State goes to the extent of ascertaining the impugned judgment of conviction and sentence,

rendered by the trial Judge on the theory that upon the circumstances spoken to, ex facie it is made clear that the accused is the sole enemy of the

deceased and that therefore an attempt was made to justify impugned judgment.

In the context of the above circumstances, we have to see whether the prosecution has established the guilt of the accused beyond all

reasonable doubts by adducing acceptable evidences circumstances with every cogency and link to prove the guilt and complicity of the accused

beyond all reasonable doubts and if so, the impugned judgment is proper or not ?

The fact that the deceased Kannu Naidu and his son, by name Anandan and P.W. 6 Nallammal, wife of Kannu Naidu were always on serious

loggerheads with the accused resulting in lot of civil and criminal litigation is admitted by both the parties herein. The prosecution case itself seems

to have admitted that for sometime prior to the occurrence, the deceased and his son were alleged to have cut the hands of Kannammal, the sister

of the deceased Kannu Naidu and the case was prosecuted on that score. It was also admitted that a land belonging to Kannammal was in the

occupation of, and in possession of the deceased Kannu Naidu and his son Anandan and with regard to the same, there appears that a complaint

was given by Kannammal. It is not in dispute that the daughter of Kannammal was given in marriage to the accused. Immediately a few days prior

to the occurrence, bickering had erupted between the two groups. But it is seen that nothing has been claimed against the accused directly. All the

overt acts appear to have happened amounting to motive for the occurrence, are only between Kannammal and her brother, deceased Kannu

Naidu and not between the deceased Kannu Naidu and the accused. None of the overt acts or incidents or occurrence against the accused has

been claimed by the prosecution is significant in appreciating the matter in its proper legal perspective.

It was the evidence of P.W. 11, the cycle shop owner, a resident of Kannandahalli village that he saw the deceased on the date of occurrence

i.e. on 13-5-86 both in the morning and in the evening, when he came to his shop to leave his bicycle M.O. 2 in the morning and to take his bicycle

at about 5:00 p.m.

To implicate the accused, an attempt was made by P.W. 8 Nandi Gounder that on the day of occurrence at about 5:30 p.m. when he was

waiting in the joint road of Kannandahalli, he saw the accused going in a bicycle with blood stained Aruval M.O. 1 in his hand. This is one of the

circumstances claimed by the prosecution against the accused, but the prosecution is obviously silent about the distance between the joint road of

Kannandahalli and the scene of crime properly and even if the accused was found going by a bicycle with blood stained Aruval M.O. 1 as seen by

P.W. 8 Nandi Gounder of a different village, he should have informed police or villagers or neighbours at once about the abnormal scene that he

had seen that the accused was going with blood stained M.O. 1 in a bicycle. He never even attempted to question the accused. The very fact that

he did not even tell anybody, till he was examined by the police, not only provides grave suspicion about his conduct, his attitude and his inaction

throughout, but also, made us disbelieve his version in total.

The other incriminating circumstance relied on by the prosecution is that P.W. 9 happened to see the accused going in a bicycle with the blood

stained M.O. 1 and that he surrendered before the Mathur Police Station and the said M.O. 1 was recovered in his presence, under the mahazar

and Form-95 and his statement was recorded by the Sub Inspector of Police. This witness also lacks credibility, for his part of evidence cannot be

accepted by any court of law, for the simple reason that what was the occasion which led the presence of the witness before the police station on

the day of occurrence. The very fact that he himself admitted that he had given evidence in favour of police more than 23 times, clearly reveals that

he is a chance witness, always made available in the stock of police for using before the Court. Significantly, the other witness has not at all been

examined. Even after the next day, the law was set in motion, during inquest. This witness was not even examined by the Investigating officer, who

conducted the inquest for the obvious reasons best known to him. Above all, on scrutiny, this evidence and his performance before the Court, for

the Chief and cross examination has not inspired any confidence or truthfulness or credibility about his character and conduct. It is highly doubtful

under the circumstances noted above, particularly that he is the person who has given evidence on behalf of the police more than 23 times in the

Court of law, would clearly expose the fact that he was the stock witness readily available in the hands of police. Therefore, the evidence of this

witness is highly doubtful there cannot be any truth or genuineness or credibility. We suspect this evidence with every seriousness. He seems to be

a false witness utilised by the police to give evidence in support of prosecution case.

Except the above three circumstances, no other circumstance against the accused has been claimed by the prosecution throughout the length

and breadth of the instant case. P.W. 6, the wife of the deceased Kannu Naidu, herself had admitted that her family and her husband Kannu Naidu

had several enemies in the village and surroundings and that therefore any one of them or many of them might have caused the injuries to the

deceased in the instant case. It is only a mere fact on the basis of suspicion. Likewise, the guilt and complicity of the accused also in this case may

be inferred from the very inadequate or improper 3 circumstances above referred. Nothing was spoken by any of the witnesses of prosecution that

either prior to the occurrence or subsequent to the occurrence, the accused was connected and had nexus with the crime, nor any circumstance of

the case involves the accused with the guilt and complicity.

It is true that the deceased Kannu Naidu was killed by a homicidal violence as a result of more than 11 injuries, noted by the Doctor P.W. 5,

in the post mortem certificate, and, it is clear that there cannot be any doubt about the fact that the deceased was done to death by homicidal

violence. But the sole and important question that remains for consideration is, who is the culprit or the assailant ? In identifying the accused with

every culpability to commit such a murder or a heinous crime, there is absolutely no iota of materials or legal evidence or circumstantial evidence

adduced by the prosecution case. May be on account of the prolonged enmity that existed between the deceased and his sister Kannammal, the

accused might have been chosen as a target for the survival of the real culprit. Having thus given our anxious consideration to the heinous manner in

which Kannu Naidu was done to death by homicidal violence, we are unable to persuade ourselves to accept the worthless nature of prosecution

evidence, attributed with incredibility and for the said reasoning, we are not inclined to endorse our views with the findings and discussions given by

the learned trial Judge.

We have to record that in mulcting the criminal liability to one person for having committed the offence and that too a graver one, the courts of

law are not expected to go, on the basis of surmised, conjectures and sentimentalities and it has to render its findings on the availability of legal

evidence, which includes oral, documentary and circumstantial. Suspicions may be strong and however strong the suspicions may be, in our

respectful view it cannot amount to legal evidence of any kind above referred. Simply because of the enmity existed between the deceased Kannu

Naidu and Kunnammal, the mother-in-law of the accused, it is not at all possible to take any iota off circumstance or link against the accused for

his very involvement and participation in the crime. The learned trial Judge has thus totally overlooked the very approach which are legally required

to be done by him and it resulted in the erroneous conclusion arrived at by him in finding the accused guilty.

Therefore, we are left with no other alternative, except to interfere with the impugned judgment in total. After having thus carefully considered

every aspects of the legal and circumstantial evidence, tendered by the prosecution we are constrained to hold, that the prosecution has virtually,

totally and deliberately failed to establish the guilt and complicity of the accused in the instant case to any extent and that therefore, the judgment of

conviction and sentence rendered by the learned trial Judge is hereby set aside.

In the result, the appeal succeeds and is accordingly allowed. Consequently, the judgment of conviction and sentence rendered by the learned

sessions Judge of Dharmapuri District at Krishnagiri in Sessions Case No. 80 of 1986 dated 28-10-87, finding the accused guilty of the offence

u/s 302 of Indian Penal Code find sentencing him to undergo rigorous imprisonment of his life, is hereby set aside and we acquit the accused

forthwith.

Appeal allowed.