Perumal vs State of Pondicherry

K.P. Sivasubramaniam, J.—This appeal arises out of the judgment of the learned Second Additional Sessions Judge, Pondicherry in S.C.

No. 44 of 1989 dated 25- 7-1990.

The accused/appellant in the above appeal stood charged u/s 302 Indian Penal Code. The learned Sessions Judge found him guilty u/s 304 Part

II Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years.

The case of the prosecution is that one Rajasekara Mudaliar, father of P.W.3 Ganesh, owns a thope in Nainarmandapam. The thope belonging

to one Jeel Naidu is on the northern side and the thope belonging to one Kesavan is situated on the eastern side of Rajasekaran Mudaliar''s thope.

The deceased Vedachalam was a day watchman employed by Rajasekara Mudaliar. The accused/Perumal was employed uner Kesavan in his

thope. There was already a civil dispute between Kesavan''s father Govindaraj and Rajasekara Mudaliar, regarding the lease of the thope and also

regarding appointment of deceased and P.W.6 as watchmen for the thope belonging to Rajasekara Mudaliar. Kesavan''s father was consequently

evicted. The accused is residing adjacent to the thope of Rajasekara Mudaliar''s thope and also used to carry away the coconuts from the thope

belonging to said Rajasekara Mudaliar. This was objected to by the deceased as per the instructions of his owner, and the deceased had also

prevented the accused from tying the cattle in the thope belonging to Rajasekara Mudaliar. On account of this, there used to be frequent quarrels

and misunderstanding between the accused and the deceased. The accused was living in the house of P.W.11 Sahadevan, who is his brother-in-

law and he is also aware of the quarrels between the accused and the deceased. On 11-3-1987, there was a complaint against the accused for

mishebaviour with the deceased and P.W.6 and the accused was summoned by the Police and was severely warned. Again on 26-5-1987, on a

complaint given by P.W.6 that the accused had beat 79 him, the accused was fined and he had paid Rs. 40/- as fine. Therefore, according to the

prosecution, the accused had a grudge against P.W.6 and the deceased.

It is further alleged that on 2-6-1987, at about 5.00 p.m., P.W.3 went to his father''s thope and found that the deceased was not there, and

asked P.W.6 to fetch the deceased. After sometime, both P.W.6 and the deceased came to the thope and the deceased complained to P.W.3 that

the accused was threatening him frequently P.W.3 is said to have warned the accused who was standing near the thope, not to misbehave with the

deceased and P.W.6. At about 6.00 p.m., the accused is alleged to have come with a casuarina stick (M.O.1) and chased P.W.6 and the

deceased and had hit the deceased with M.O.1 on his head and chest. It is further alleged that seeing the deceased falling down P.W.6 ran away

from the spot out of fear, and that P.W.2/Jayaraman, who is a toddy tapper of that place, saw the deceased lying with injuries near the thope

belonging to Jeel Naidu, while he was returning from his work at about 7.30 p.m. and that he went and informed P.W. 1, brother-in-law of the

deceased, in his house and both went to the spot and P.W.1 carried the deceased in a rickshaw to the General Hospital, Pondicherry. P.W. 11,

the Doctor, who was on duty in the casualty on 2-6-1987, after examining the injured, pronounced him dead and issued death intimation to the

Grand Bazaar Police Station. P.W. 1 is said to have gone to Mudaliarpet Police Station at about 10.30 p.m. and is said to have lodged a

complaint Ex-P1 before P.W. 14, Sub-Inspector of Police. The case was registered u/s 302 Indian Penal Code in Crime No. 72 of 1987 of

Mudaliarpet Police Station. P.W. 11 informed the Circle Inspector of Police/P.W. 15 over the Phone and P.W. 15 took up investigation of the

case. P.W. 15 then proceeded to the hospital with P.W. 14 and P.W. 1 and saw the body of the deceased. Immediately thereafter, he went to the

scene of crime at 01.15 hours and after posting a guard in the place of occurrence, he proceeded to the General Hospital, alongwith P. Ws. 13,14

and 1 and conducted an inquest over the body in the presence of P.W.5 and others. P.W. 15 examined P. Ws. 1 to 3 and 6 recorded their

statements. He also proceeded to the scene of occurrence alongwith P.W. 14 and prepared a rough sketch Ex-P. 12 and an observation

Mahazar/Ex-P5 and seized blood stained mud/M.O.2. Requisition for the post mortem of the body was handed over to P.W.12, the then

Assistant Surgeon of General Hospital, Pondicherry on 3-6-1987 and on post mortem examination, the Doctor found the following injuries on the

body of the deceased:

External injuries:

A lacerated open wound of 3"" in length X 1/2"" breadth on the back side of skull. The injury was extending from the right temporal region to the

occipital region. Bleeding from the wound was found.

Another lacerated injury open 3"" in length X 1/2"" in the left side of the skull extending from the temporal region to the occipital region.

Two contusion marks 6"" in length 1 1/2"" apart over the right side of the chest wall oblique in nature below the nipple on the right side.

Two contusion mark 6"" in length 1 1/2"" apart over the left side of the chest wall straight in nature below the left nipple. On dissection the

following internal injuries were found:

There was a fracture of the lower four ribs in the mid calvicular line on the right side of the chest wall.

On opening the scalp blood oozed out from the skull. A liner fracture extending from the right temporal region over the ear to the back on the

occipital region 8"" in length.

On opening the skull huge Haemotoma was present over the brain covering the right side and a small Haemotoma on the left side extending

posteriorly to the back of the brain.

Ex-P 10 is the post mortem certificate and as per the opinion of the Doctor, the cause of death was due to multiple bone fracture, brain damage

and shock.

On 5-6-1987, it is alleged that P.W. 13 arrested the accused near Periyakalapet on the main road and produced him before P.W. 15, the

Inspector of Police. He is alleged to have made a voluntary confession leading to recovery of M. O. 1 from the eastern corner of the cow shed

belonging to Kesavan. M.0.1 was seized under Mahazar/Ex-P4 in the presence of P.W.8 and another.

According to Ex-P1/First Information Report, given by P.W.1, he has named both the accused and another Sakthivel as probable culprits who

might have caused the death of the deceased in view of the fact that the accused was angry against the deceased and P.W.6, in view of the earlier

incident as between two parties. Even though, the prosecution has examined number of witnesses, who have mainly deposed about the enmity

between the accused and the deceased, the only eye witness in the case is P.W.6. As pointed out by the learned Counsel for the Appellant, the

conduct as well as some of the vital contradictions as seen from the evidence of P.W. 1 and 6. would give rise to adequate doubt as regards the

case of the prosecution. I am inclined to entertain serious doubts about the version of the prosecution especially having regard to the following

features:

(1) The conduct of the sole eye witness, who is none else than a co-worker of the deceased in not having reported the matter, either to the Police

or to the land owner is very strange. After noting that his coworker had been seriously injured, and that he had fallen down unconsciously, he has

not taken any steps either to take him to the Hospital, or to rush to Police Station or to their employer to report about the incident. On the other

hand, he goes away coolly to his house, and is said to have come to the hospital only next morning after hearing that Vedachalam was dead.

The learned Public Prosecutor would state that having regard to the earlier incidents in which, they were already beaten up, P.W.6 must have been

terribly afraid of going out anywhere. This explanation does not seem acceptable. If he himself was really afraid, he could have sent a message to

their employer atleast through someone else and it is very difficult to believe that he was so much afraid of the accused persons, that he could do

nothing about giving immediate treatment to his own co-worker.

(2) As regards the actual incidents in the Chief examination as well as in the cross-examination, P.W.6 states that at about 6.00 P.M., the accused

had come with a casuarina stick, chased him and deceased Vedachalam, and that the accused hit the deceased on the head and chest with M.O.1

stick and that, the deceased fell down. He has repeated the same statement in the cross-examination also to the effect that the accused chased

them with the stick. But two sentences later, he would say that the deceased Vedachalam went alone towards his house and that when the

deceased was going alone, the accused had hit him, and that at that time, he was standing at a distance of about 20 feet. Both versions are at total

variance. The later version will make it appear as though he was not being targeted, and that the accused was only after the deceased, and was

beaten when he was going alone towards his house. There is absolutely no explanation for such a vital contradiction relating to the actual incident.

(3) The evidence of both P. Ws. 3 and 6 are to the effect that the deceased did not come for day duty on that day, and that P.W.3 asked P.W.6

to fetch Vedachalam, and that P.W.6 went and brought the deceased. This was not disclosed to the Police as would be evident from the evidence

of P.W. 15, but P.W.6 claims to have informed about this to the Police. P.W. 15 has positively stated that P.W.6 did not tell him that he went and

brought the deceased Vedachalam to the thope. There is no reason why there could be a variation of the evidence in this regard. In this context, it

is also pertinent to note that according to P.W.2, he had seen the deceased near Jeel Naidu thope at 4.30 p.m. on that evening. This does not tally

with the evidence of P.W.3 who would state that Vedachalam was not available at the thope even at 5.00 p.m. This contradiction would appear to

give some credence to the statement of the accused made u/s 313 Code of Criminal Procedure to the effect that Vedachalam had refused to come

to work and whereupon P.W.3 had asked Selvaraj to fetch deceased. If this version is to be believed, then P.W.2''s statement has to be

disbelieved, and the failure to mention about this to the Police assumes significance.

The conduct of P.W. 1 also does not inspire confidence in certain aspects. Being the only relative, he does nothing more than leaving the

deceased at the hospital and giving a complaint to the Police. According to his evidence, immediately after giving the complaint, it would appear

that he had returned home and that he came to know that the deceased was beaten only by the accused when he was examined at the inquest, 1

the next morning at the hospital. That a close relative of 1998-1-L.W. (Crl.)6 the deceased did not evince any interest as to the cause which led to

beating of the deceased is rather strange. Further, the claim of P.W. 1, that he went back to his house immediately after reporting the matter to the

Police is belied by the evidence of the Police. P.W. 15, the Inspector of Police, has clearly stated that after recording the complaint by P.W.1, at

10.30 p.m., he reached Mudaliarpet Police Station at 10.45 p.m. alongwith P.W. 14, and P.W. 1 proceeded to the General hospital, Pondicherry

and reached there at about midnight, and then after seeing the body of the deceased as identified by P.W. 1, at about 00.45 hours alongwith P.W.

14, and P.W. 1 proceeded to the Nainarmandapam to the scene of crime and a constable was posted at the scene of crime. On 3-6-1987, at

6.30 a.m., again P.W.15 along with P.Ws.14,13 and 1 are said to have proceeded to the General Hospital, Pondicherry. There is no reason why

P.W.1 has chosen to keep back the facts having accompanied the Police throughout.

As against the aforementioned features, which cause considerable doubt on the case of the prosecution, the learned Public Prosecutor had

mainly made his submissions on the strong probabilities arising out of motive, which was strongly projected against the accused. It is no doubt true

that enough evidence had been let in to show that the accused was having a grudge against the deceased. Even in this context, it is pertinent to note

that the accused would have had more grudge as against P.W.6 and not as against the deceased, having regard to the fact that the incident which

led to the Police complaint and the fining of Rs. 40/- was only at the instance of the complaint of P.W.6 and not at the instance of the deceased.

Therefore, if the accused was so much worked up against the watchmen, it should have been more against P.W.6 than the deceased Vedachalam.

Learned Public Prosecutor also stressed on the issue of motive by referring to the answers given by the accused for the questions u/s 313 Code of

Criminal Procedure dealing with the misunderstanding between the accused and the deceased. That would only show that the accused was frank in

admitting that their relationship was not cordial, unlike the usual negative answers which are given u/s 313 Code of Criminal Procedure If reliance is

to be placed on the answers of the accused u/s 313 Code of Criminal Procedure then his answers to all the questions must be taken together. To

the last question he has replied that four (named) individuals were actually the culprits. Further, proving motive alone would be sufficient to dislodge

the doubts which arise as regards the actual incident, which had led to the death of the deceased. Motive alone cannot be the proof of the offence.

Motive may be relevant and important on the question of intention but not the sine qua non for bringing home the offence. The following expression

in the judgment of the Supreme Court reported in The State of Uttar Pradesh Vs. Hari Prasad and Others, would be relevant:

And often times, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive.

But if the crime is allegel to have been committed for a particular motive, it is relevant to inquire whether the pattern of crime fits in with the alleged

motive.

In Kehar Singh and Others Vs. State (Delhi Administration), , the Supreme Court held that the mere fact that the accused was in an agitated

mood of avenge against the victim, was not enough to connect the accused with the offence.

Having regard to the features pointed out earlier, I feel that this is a case, in which, the benefit of doubt should be given to the accused and

hence I am inclined to allow the appeal.

The above appeal is allowed and the accused is set at liberty.