Raja (a) Solai Raj vs State

S. Rajeswaran, J.—This Appeal has arisen out of the conviction and sentence imposed on the Appellant by the judgment dated 26.04.2003 in S.C. No. 8 of 2001 on the file of the Additional Sessions Judge, Fast Track Court No. 1, Tuticorin. The learned trial judge, in conclusion of the trial found the Appellant/accused guilty of the offences u/s 449 and 302 IPC. The Appellant was convicted and sentenced to undergo 10 years rigorous imprisonment along with a fine of Rs. 500/-in default, to undergo three months simple imprisonment for the offence u/s 449 IPC and also to undergo life imprisonment and to pay a fine of Rs. 1,000/- in default, to undergo six months rigorous imprisonment u/s 302 IPC.

PW.1 Subburaj is the brother-in-law of the deceased. He was working in Coimbatore. The deceased Seetharaman was running a match factory in the name and style of "Mariamman Industries" at Kovilpatti. The company was maintained by the deceased and PW.3.PW.3 is the co-brother of PW1. Three months'' prior to the incident, the deceased went to another company at Aruppukkottai.

PW.1 came to his mother-in-law''s house at Kovilpatti for celebrating Deepavali aon 4.11.1999. On 5.11.199 at about 10.00 a.m., he along with wife went to the Company. The deceased returned from Bazaar and they all returned to the house of PW.1 to take dinner.The deceased did not take any food as he had already taken food in the Bazaar. The deceased slept in PW.1''s house. He got up at around 11.30 p.m., and went to his company to sleep there. On 6.11.1999, at 6.30 a.m., PW.1 along with PW.3, sister in law viz., Mariammal went to the factory. The factory was locked inside and therefore, they knocked the door. Since there was no response and the door was not opened, PW.1 scaled over the gate and went inside the factory when he found the deceased lying with the injury near the cutting machine.

PW.1 and others suspected that some body would have murdered the deceased. PW.1 went to Kovilpatti West Police Station and lodged a complaint Ex.P1 on 6.11.1999 at 8.00 a.m.,.

PW.16, Sub Inspector of Police recorded the statement and registered a case on the complaint given by PW.1 in Crime No. 498/1999 for the offence punishable u/s 302 IPC.Printed F.I.R. is marked as Ex.P.15. PW.16 sent the printed F.I.R.through PW.15 to the Judicial Magistrate concerned and the same reached the Court at 11.00 a.m.,.

The Inspector of Police, PW.18 received the information about the incident on 6.11.1999 at 10.00 a.m., and proceeded to the place of occurrence and prepared an Observation Mahazar Ex.P.2. He has also prepared a Rough Sketch Ex.P.17 and conducted inquest on 6.11.1999 from 2.30 p.m., to 4.00 p.m.,. PW.18 recovered M Os. 1 to 6, mortar pieces with and without blood, mat, pillow, bed sheets and planks from the place of occurrence.

PW.18 summons sniffer dog on 7.11.1999 and after examination of the witnesses he suspected three persons for the instance.

The Appellant and his mother Mahalakshmi were working in the deceased''s company prior to the occurrence. The deceased sent 5 out the said Mahalakshmi due to her bad conduct. The deceased also teased his mother by referring to the conduct of his mother, Mahalakshmi. Three months prior to the occurrence, when the accused was along with the deceased and PW.3 to Sivakasi, the accused/Appellant met with an accident and the deceased spent around Rs. 3,000/- for the accused. The deceased demanded return of the money spent and therefore, the deceased and the accused had a dispute in this regard. Similarly, one Krishnasamy owe a sum of Rs. 17,000/- to the deceased. The deceased gave money for the construction of the house of the deceased. Hence, there was dispute between the deceased and Krishnasamy. The deceased had intimacy with one Periyapattu, an employee and the mother of Periyapattu had quarrels with the deceased on that score.

PW.18 examined Krishnasamy, Periayapattu, Lakshmi, Murugaiah, and the relatives of Periyapattu to the occurrence. PW.18 also examined PW.6 and PW.9 on 10.11.1999 and PW.9 stated to him that he saw the Appellant near the place of occurrence with aruval on 6.11.1999 at about 3.30 a.m.,. On 12.11.199 at 9.30 a.m., the Appellant 6 was produced before PW.18 in the Police station by PW.10 and PW.11.

The Appellant gave a confession statement to PW.18 in the presence of PW.10 and PW.11 and produced MO.7 Aruval. PW.18 had also recovered bloodstained lungi and shirt of the deceased from the bath room of the accused'' house. After completing the investigation, PW.18 filed his final report on 7.12.1999.

On the side of the prosecution, 18 witnesses were examined and 19 documents were marked as Exhibits and 11 M Os. were marked. The incriminating materials were put to the accused u/s 313 Code of Criminal Procedure .,. The accused denied the same. The accused though stated there were witnesses, none was examined on his behalf.

We have heard the learned Counsel appearing for the Appellant and the learned Additional Public Prosecutor. We have also gone through the documents available on record.

Learned Counsel appearing for the Appellant submitted that there is no eye-witness to the occurrence and the entire case is based on only circumstantial evidence and the circumstances are also not sufficient to form a link to fix the liability on the accused. The 7 evidence of PW.6 and PW.9 are unbelievable and cannot be acted upon.

Per contra, learned Additional Public Prosecutor submitted that PW.1, PW.2, PW.3, PW.6 and PW.10 have spoken about the motive of the accused against the deceased and PW.9 saw the accused with aruval near the deceased''s company on 6.11.1999 at about 3.30 a.m. The accused had surrendered before PW.10 and gave statement in the presence of PW.10 and PW.11 in the Police Station.M Os.7, 8 and 9 were recovered pursuant to the confession of the accused and this circumstance stands sufficient to fix the liability on the accused for the occurrence.

PW.1 is residing at Coimbatore and he has no direct evidence over the alleged motive instance between the deceased and the accused; so also the other witnesses who spoke on the motive are all only hearsay evidences and not direct witness for the motive instance.

PW.1 and other witnesses did not speak about this motive against the accused during their examination under inquest. PW.18 was not able to ascertain the culprit and therefore, he called the 8 sniffer dog on 7.11.1999. The statements of PW.6, PW.9 and PW.10 came into existence only after 10.11.1999.

PW.9 is said to have witnessed the accused with aruval near the place of occurrence on 6.11.199 at 3.30 a.m., but the conduct of PW.9 in not informing the same to the police even after the occurrence causes doubt and makes his evidence highly doubtful and therefore, much reliance cannot be given to his evidence.

The arrest and recovery were made after six days. The confession statement (Ex.P5) was recorded by PW.18, the Inspector of Police in the Police Station in the presence of PW.10 and PW.11. It cannot be treated as extra judicial confession as it was recorded before the Inspector of Police in the Police Station and that too after the commencement of the investigation.

PW.11 is not the V.A.O of the accused''s village. PW.10 is also residing at Kovilpatti six kilometres away from the accused''s village.Both PW.10 and 11 are not known to the accused. While so, it is highly unnatural that the accused went to the unknown persons to surrender and to gave a statement.

The case of the prosecution is that the accused had cleaned aruval after the occurrence in a nearby place called Nariyuthu. The accused who cleaned the aruval in Nariyuthu could not have kept the bloodstained clothes with him without knowing the same for nearly six days.

The occurrence had taken place on 6.11.1999 and the M Os.8 & 9 were recovered from the accused''s bath room on 12.9.1999 at about 1.15 p.m.,. In the absence of sufficient co-ordinating materials, it is not safe to convict the accused with available chemical analysis report on M Os.8 & 9.

The evidence of PW.6 is again not reliable though he had stated about the motive between the deceased and the accused. He is not the eye-witness to this motive instance. He is only a hearsay witness and therefore, much reliance cannot be given to his evidence on the motive.

PW.6 is an arrack seller and has bad antecedents. His statement was recorded after 10.11.1999 and also sent to the Court belatedly. PW.6 in his evidence spoke about all the instances said to have taken place between the deceased. PW.6 came to know about the murder of the deceased on 6.11.1999 but did not go and see the deceased thereafter. Thus, the conduct of PW.6 raises a doubt on the genuenity and reliability of his evidence. PW.6 has also stated that he did not give any statement in connection with the case.

As such there is no direct evidence for the motive instance.Ex.P5 is recorded by the Inspector of Police in the Police Station and it cannot be treated as extra judicial confession.

MO.7 recovery pursuant to the confession does not have any bloodstains and further the same was not sent for chemical analysis.

The evidence of PW.9 that he last see the accused with aruval near the deceased''s company came into existence only on 10.11.1999. Therefore, it is hard to believe and accept.

In this connection, it is useful to refer to the judgments relied on by the learned Counsel appearing for the Appellant:

(i) 2004 (1) MWN (Cr.) 315 [Arumugam v. State]

(ii) (2011) 1 MLJ 598 [Podyami Sukada v. State of M.P.]

(iii) (2011) 1 MLJ 609 [K. Dhanavel v. Inspector of Police, Ayyampettai Police Station, Thanjavur District]

In 2004 (1) MWN 315 (DB) cited supra, it has been held by a Division Bench of this Court of the Principal Bench that the circumstance relied on by prosecution should encircle accused leaving no scope or possibility for him to escape. No crack or snap should be there in chain of events of circumstances. Eve if one link is broken, possibility comes automatically for accused to escape through that gap.

In (2011) 1 MLJ 598 [Podyami Sukada v. State of M.P.] cited supra, the Honb''le Supreme Court has held as follows:

Reliability of witnesses to the extrajudicial confession determines the evidentiary value of extrajudicial confession.

Witnesses of extrajudicial confession should inspire the confidence of the Court and a conviction cannot be sustained merely on the ground of recovery of weapon of crime at the instance of accused.

(2011) 1 MLJ 609 [K. Dhanavel v. Inspector of Police, Ayyampettai Police Station, Thanjavur District], cited supra, a Division Bench of this Court has held as follows:

It is highly improbable for an accused to make extra-judicial confession to a person unless they have close acquaintance or relationship with each other so as to repose confidence on that person.

There is no sufficient evidence to fasten the liability on the accused and he is entitled to be acquitted.

In the result, Criminal Appeal is allowed and the judgment of conviction and sentence dated 24.06.2003 made in S.C. No. 8 of 2001 by the Additional Sessions Judge, Fast Track Court No. 1, Tuticorin is set aside and Appellant is acquitted of the charges. Bail Bonds, if any, executed by the Appellants stand terminated. Fine amount paid by the Appellant is to be refunded to him.