Mookkandi and Gurunatha Konar vs State of Tamil Nadu

N. Dhinakar, J.—The appellants, two in number, were tried before the II Additional Sessions Judge, Tirunelveli, in Sessions Case No. 150

of 1997. The first appellant was charged u/s 302 IPC and the second appellant was charged u/s 302 r/w Section 34 IPC, and the allegation

against them is that at 1.30 p.m. on 12.10.1996, they, on account of prior enmity, caused the death of Sudalaiandi Konar, by the first appellant

beating him with a firewood log on the head and the second appellant also beating him with another firewood log on the back of chest and on the

right hand fingers and that on account of the injuries suffered, the said Sudalaiandi Konar breathed his last at about 4.40 p.m. on 14.10.1996 at

Tirunelveli Medical College Hospital, Tirunelveli, where he was undergoing treatment for the injuries suffered by him. The learned Sessions Judge,

finding the first appellant, who hereinafter will be referred to as the first accused (A1) for the sake of convenience, guilty u/s 302 IPC, sentenced

him to imprisonment for life. The second appellant, who hereinafter will be referred to as the second accused (A2), was convicted as charged u/s

302 r/w Section 34 IPC and for the said conviction, the learned Sessions Judge imposed similar sentence as he imposed upon A1. Aggrieved by

the said order of conviction and sentence, the accused have preferred the present appeal.

The prosecution, to establish the two charges against the appellants, examined P.Ws.1 to 18 and marked Exs.P-1 to P-19 as well as M.Os.1 to

5.

The case of the prosecution can be briefly summarised as follows:- A1 is the son of A2. P.W.4 is the daughter of the deceased and P.W.1 is the

son-in-law of the deceased, in that he has married the sister of P.W.4. P.Ws.2 and 3 are the neighbours of the deceased. The accused and the

deceased were residing at Maruthamuthur village. According to the prosecution, there was no love last between the accused and the deceased and

there was a case between the parties pending at the court at Cheranmadevi.

At about 1.30 p.m. on 12.10.1996, P.W.4, the daughter of the deceased, was sitting in front of her house rolling beedies. P.W.1, the son-in-

law of the deceased, and the deceased were standing near Mutharammal Koil and talking with each other. A1 and A2 went there and A1 beat the

deceased on the head with a firewood log by saying that if he is left alive, he will cause obstructions to him. A2 joined A1, by beating the deceased

on the back of chest. After beating the deceased, the accused ran away from the place. The witnesses raised alarm and later, the deceased was

placed in a van and taken to Government Hospital, Ambasamuthiram, by P.Ws.1 and 2. The deceased was produced before P.W.11, the casualty

medical officer, at 3.10 p.m. on 12.10.1996. The doctor, on examining Sudalaiandi Konar, found on him a lacerated wound measuring 5 x 3 x 3

cm over the occipital region of scalp and noticed bleeding from the wound. Ex.P-5 is the wound certificate issued by the doctor. As the injured

was found not co-operating, the doctor referred him to Tirunelveli Medical College Hospital, Tirunelveli, for better management. On the advice of

P.W.11, the injured Sudalaiandi Konar was taken to Tirunelveli Medical College Hospital, Tirunelveli, where he was admitted on the night of

12.10.1996. P.W.12, the doctor, was summoned to examine the injured Sudalaiandi Konar and on examination, the doctor found injuries on the

body of Sudalaiandi Konar and therefore, gave him treatment.

On receipt of an intimation from the Outpost Police Station, Tirunelveli Medical College Hospital, Tirunelveli, P.W.17, Sub-Inspector of Police,

Mukkudal Police Station, went to the hospital and recorded Ex.P-12, the statement given by P.W.1 at 10.00 p.m. on 12.10.1996. He returned to

the police station, where he registered a case, on the basis of Ex.P-12, in Crime No. 212 of 1996 against the accused u/s 307 IPC and prepared

express reports. Ex.P-13 is a copy of the printed first information report.

Investigation in the crime was taken up by P.W.18, Inspector of Police, Mukkudal Police Station. On taking up investigation in the crime,

P.W.18 proceeded to the scene of occurrence where he prepared an observation mahazar, Ex.P-14, and drew a rough sketch, Ex.P-15. He

seized blood-stained earth, M.O.4, and sample earth, M.O.5, under a mahazar Ex.P-16 attested by the witnesses. He questioned P.Ws.1 and 2

and others and recorded their statements. A1 was arrested at 6.00 a.m. on 13.10.1996 near a rice mill at Maruthamuthur-Pudukkottai Road and

when questioned, A1 gave a statement, the admissible portion of which is Ex.P-17. While the investigation was in progress, Sudalaiandi Konar,

who was undergoing treatment at the hospital, died at about 4.40 p.m. on 14.10.1996 and on receipt of the death intimation, the crime was altered

to one u/s 302 IPC. On 15.10.1996, inquest was conducted by P.W.18, over the dead body of Sudalaiandi Konar between 9.00 a.m. and noon

and the inquest report is Ex.P-19. After the inquest, a requisition was issued to the medical authorities for conducting autopsy on the dead body.

On receipt of the requisition, P.W.10, Tutor in Forensic Medicine, Tirunelveli Medical College, Tirunelveli, conducted autopsy on the body of

Sudalaiandi Konar and found the following ante-mortem injuries:-

Abrasions: 4 x 2 cm on the outer aspect of left knee; 9 x 6 cm on the outer aspect of lower part of left back.

Contusion seen on the right dorsum of hand.

Laceration: 3 1/2 cm x muscle-deep seen on the web of right index and right middle finger.

Head found bandaged. On removal of bandage, abrasion 6 x 3 cm on the right forehead. Multiple small abrasions of varying sizes over an area

of 9 x 5 cm on the left frontal and left parietal region. 2 x 1 cm abrasion on the back of right parietal region. Sutured wound 7 cm long seen on the

right parietal region. On dissection: It was bone-deep, burrhole seen at site. Laceration 3 x 1/2 cm x muscle-deep seen on the back of left parietal

region.

On dissection of scalp: 21 x 19 cm bruising of inner aspect of tissue of scalp on the right frontal, parietal and right occipital region. Right

temporal muscles found bruised, sub-dural haematoma about 100 grams seen on the right side of cerebral hemisphere marked sub-dural and sub-

arachnoid haemorrhage seen over major portions of cerebral hemisphere. Pontine haemorrhage noted. Fracture of middle and posterior cranial

fossae of base of skull on the right side.

Ex.P-3 is the post-mortem certificate issued by the doctor with his opinion that the deceased died on account of shock and haemorrhage due to

head injuries.

P.W.18, continuing with his investigation, questioned P.W.11, who initially examined Sudalaiandi Konar at Ambasamuthiram and recorded her

statement. He also questioned the doctor, P.W.10, who conducted autopsy, and recorded his statement. A2 was arrested at 5.00 a.m. on

17.10.1996 near a cinema theatre in the presence of P.W.9 and another. When questioned, A2 gave a statement and the admissible portion of the

same is Ex.P-1. Pursuant to Ex.P-1, A2 took the police party to a thorny bush near Raja Theatre and produced a firewood log, M.O.2, and the

same was seized under a mahazar Ex.P-18. On 22.10.1996, the material objects were sent to court with a requisition, Ex.P-7, to forward them

for analysis.

The accused were questioned u/s 313 Cr.P.C. on the incriminating circumstances appearing against them and they denied all the incriminating

circumstances and A2 stated that he did not give any statement leading to the recovery of M.O.2 and that he was taken from his house by the

police officers and a false case had been foisted upon him. The accused did not examine any defence witness.

The accused, before the trial court, did not dispute the cause of the death of Sudalaiandi Konar. The prosecution also succeeded in

establishing the cause of the death of Sudalaiandi Konar, by examining P.W.10, the doctor, who conducted autopsy, since, according to him,

Sudalaiandi Konar died on account of shock and haemorrhage due to the head injuries sustained by him. We, on the medical evidence, hold that

Sudalaiandi Konar died on account of homicidal violence.

Though the prosecution, before the trial court, examined four witnesses as P.Ws.1 to 4 to prove that A1 and A2 inflicted injuries on the

deceased resulting in his death, P.Ws.1 to 3 turned hospital and per force, it had to rely on the evidence of P.W.4, the daughter of the deceased,

alone.

We will now take up the evidence of P.W.4 to find out whether her evidence infuses confidence in the mind of the court to uphold the

conviction of A1 and A2. According to P.W.4, while she was in her house rolling beedies, the occurrence had taken place and she has claimed

that while the deceased and her brother-in-law, P.W.1, were standing in front of a temple and talking with each other, the accused went there and

inflicted injuries on the deceased and that thereafter, the accused ran away from the place. She has further stated in her evidence that after the

incident, her father, who was injured, was placed in a van and taken to hospital. The complaint, Ex.P-12, according to the prosecution, was given

by P.W.1 to P.W.17, the Sub-Inspector of Police, at 10.00 p.m. on 12.10.1996 at the Tirunelveli Medical College Hospital and in the said

complaint, P.W.1 has not mentioned the name of P.W.4 as one of the persons, who witnessed the incident. Sudalaiandi Konar died at 4.40 p.m.

on 14.10.1996 and the inquest over his body was conducted between 9.00 a.m. and noon on 15.10.1996 and in the inquest report, Ex.P-19,

also, it is not found mentioned that P.W.4 was a witness to the incident. It is also useful to remember that though in chief-examination, P.W.4

stated that she was examined by the police a day after the death of her father, which means that she was examined on 15.10.1996, she gave up

that evidence when she was cross-examined. In the cross-examination, she admitted that she was not examined by the police officer at any point of

time and that she did not inform anyone about the incident till she was examined in court. In this background, we have to take into consideration

another suspicious feature, which we have noticed. Though according to the prosecution, P.W.4 was examined on 15.10.1996, the said statement

recorded by the investigating officer u/s 161 Cr.P.C. was received by the learned Magistrate only on 17.1.1997, i.e. after three months. There is

no explanation from the side of the prosecution as to why her statement was not despatched immediately to the learned Magistrate. Ex.P-19, the

inquest report, and the statements of two witnesses, P.Ws.1 and 2, who were allegedly examined at the time of inquest, were received by the

learned Magistrate on 16.10.1996 and if P.W.4 had really been examined on 15.10.1996, then there could not have been any difficulty in sending

her statement along with the inquest report, Ex.P-19, and the statements of the witnesses, P.Ws.1 and 2, to the learned Magistrate. The

prosecution has no explanation for not despatching the statement of P.W.4 along with the inquest report, Ex.P-19, and the statements of P.Ws.1

and 2, which, according to the prosecution, were recorded on 15.10.1996.

There is yet another suspicious feature, which we have noticed in the evidence of P.W.4. The prosecution, even in the chief-examination of

P.W.4, elicited that she was sitting in front of her house rolling beedies. She was cross-examined on this aspect and in the cross-examination, she

has stated that her house was situated at Pasungarankoil Street. In the rough sketch, Ex.P-15, Pasungarankoil Street is not shown and there is no

evidence as to the distance between the scene of occurrence, which, according to the prosecution, took place in front of a temple at

Mutharammankoil Street, and the house of P.W.4, which was admittedly at Pasungarankoil Street. If P.W.4 was at her house at Pasungarankoil

Street at the time of incident and if the occurrence had taken place in front of a temple at Mutharammankoil Street, it is difficult to accept the

prosecution version that P.W.4 was present at the temple and witnessed the incident. It is also to be noted at this stage that according to the

defence, there was a rioting in the village during the temple festival and in the rioting, the deceased suffered injuries. Though the said suggestion is

not probablised, the fact remains that P.W.4 could not have been present anywhere near the temple at Mutharammankoil Street, which runs from

north to south and even according to her, she was at her house at Pasungarankoil Street, rolling beedies. We, therefore, find it difficult to accept

the evidence of P.W.4. In this background, the delayed receipt of the statement of P.W.4 assumes importance and the court cannot but draw an

adverse inference that P.W.4 could not have been examined on 15.10.1996 and she must have been projected as an eye-witness at a later point

of time. We do not place any reliance on the evidence of P.W.4. Once we reject the evidence of P.W.4 and P.Ws.1 to 3 having turned hostile,

there is no other evidence connecting the accused with the crime. We are, therefore, of the view that the appellants/accused are entitled for an

acquittal.

In the result, the appellants/accused are acquitted and the appeal is allowed. It is reported that the first appellant/accused is in jail and hence,

he is directed to be released forthwith unless he is required in connection with any other case. The bail bonds, if any, executed by the second

appellant/accused, who is reportedly on bail, shall stand cancelled.