Samudrapandi, Lingathurai @ Linga Pandi, Krishnan Pandi and Ramar vs State

N. Dhinakar, J.—Appellants 1 to 4, who hereinafter will be referred to as ""accused 1 to 4"" in this judgment, were tried before the learned

Sessions Judge, Tirunelveli, on an allegation that at about 3.00 a.m. on the night of 15/16.6.1988, they caused the death of Chitrappal(a),

Royappan by A.1 and A.2 cutting the deceased on the neck with aruvals of M.Os. 1 and 2, and that A.3 and A.4 shared the common intention of

A.1 and A.2 by standing near the scene, each armed with a stick. The learned Sessions Judge, under charge No.1 framed u/s 302 I.PC, against

A.1 and A.2 convicted and sentenced each of them to suffer imprisonment for life. A.3 and A.4 were also similarly convicted u/s 302 I.PC read

with Section 34, I.P.C. Under charge No. 2 and were similarly sentenced. Hence, the present appeal by the accused.

The case of the prosecution is this:-

P.W.1 is the father of the deceased. P.W.3 is the younger brother of the deceased and P.W.2 is a friend of the deceased. A.1 to A.3 are the

brothers and A.4 is their cousin. They were all residing at Nallammalpuram.P.W.1 was cultivating the land belonging to the father of P.W.2 on

waram basis. It is the case of the prosecution that on 10.3.1987, P.W.1 sent a petition, Ex.P.2 to the Divisional Engineer, Electricity Board,

Valliyur, requesting him not to give any electricity connection to the motor pumpset belonging to the father of A.1 to A.3 The accused were

aggrieved on account of this. It is also the further case of the prosecution that on 26.5.1988, A.1 to A.3 and their father Sudalaikannu Nadar

joining with another person by name Subramaniam, beat the son of P.W.8, in respect of which, a complaint was laid by P.W.8, for which a first

information report was registered as could be discerned from Ex.P.15. When the Police Officers came to the Village to enquire and the deceased

pointed out the house of the accused. Hence, the accused were aggrieved against the deceased These two incidents were said to be the motive for

the occurrence in this case.

On 16.6.1988, P.W.1, the father of the deceased went to his land and took his bed in a thatched shed which was 100 yards away from the

motor pumpset room which was in their possession. The deceased and P.W.2 left their house to witness a circus and returned to the land by about

1.00 a.m. where P.W.1 was sleeping. P.W. 1 asked P.W.2 as to the time and P.W.2 replied saying that it is 1.00 a.m. Thereafter, the deceased

and P.W.2 went to the pumpset room and after some time the deceased asked P.W.2 to go and sleep with his father P.W.1, since he wants to

irrigate the lands. P.W.2 accordingly went and took his bed with P.W.1. At about 3.00 a.m. P.W.1 heard some noises outside and woke up. He

found A.1 to A.4 walking towards the pumpset and at that time, two lights were also burning near the pumpset. The first accused was seen

carrying with him an aruval, M.O.1 and the second accused was in possession of M.O.2 another aruval. A.3 was having a stick and A.4 was

having another stick, M.O.3 in his hand. P.W.1 woke up P.W.2 and both proceeded towards the pumpset room. When they covered a distance

of 60 feet, they found the deceased lying on the ground with his head facing towards west and legs facing towards east. The first accused was seen

cutting the deceased on his neck and the second accused also inflicted another cut on the neck of the deceased. P. Ws.1 and 2 raised an alarm

and A.3 and A.4 who were armed with sticks chased them. P.W.s 1 and 2 ran and hid themselves in darkness. All the four accused ran towards

west taking the weapons with them. P.Ws.1 and 2 then went to the place where the deceased was lying and found him struggling. He died few

moments thereafter. P.W.1 asked P.W.2 to go and inform the incident to the family members and accordingly, P.W.2 left the pumpset room and

went to the house of the deceased and informed P.W.3 at about 3.30 a.m. The family members of the deceased reached the pumpset room and

thereafter P.W.1 left the scene of occurrence to meet the Village Administrative officer. P.W.4 whom he met at about 5.00 a.m. in his house. He

gave a compliant about the incident to P.W.4, which was reduced into writing by him and the said complaint stands marked as Ex.P.1 in this case.

P.W.4 sent the said report, Ex.P.1. through the Thalayari and P.W.1 to the police station. Ex.P. 1 was handed over to P.W.12. the Sub-Inspector

of Police of Thisayanvillai Police station by the Thalyari and P.W. 1 at about 6.30 a.m. P.W.12 on receipt of Ex.P.1 registered a case in Crime

No. 257 of 1988 u/s 302 I. P.C. read with section 34, IPC. Ex.P.18 is the copy of the printed first information report. The express reports were

despatched to the Court as well as to the higher Officials. Ex.P.1 and a copy of the first information report reached the hands of the learned

Magistrate by 2.00 p.m. on 16.6.1988.

On receipt of the information about the registration of the crime, P.W.13, the circle Inspector of police, Thisayanvillai took up investigation in the

case and reached the scene of occurrence at 8.00 a.m. where he prepared the observation Mahazar, Ex.P.3 and drew a rough sketch Ex.P.19. In

the presence of Panchayatdars, he conducted inquest over the dead body of the deceased between 9.00 a.m. and 11.30 a.m. during which he

questioned and recorded the statements of P.Ws 1 to 3 and others. Ex.P.20 is the Inquest Report. After the inquest, he sent the dead body with

his requisition, Ex.P.16 for conducting autopsy.

On receipt of the requisition and the dead body, P.W.9, the Civil Assistant Surgeon attached to the Government Hospital, Nanguneri.

conducted autopsy on the body of Chithrappal @ Rayappan at about 3.30 p.m. on 16.6.1988 and found the following external injuries:-

A deep cut wound starting at the right angle of mandible extending to left supra-scapula area 20 Cm x 10 Cm. X 8 Cm. On exploration, blood

vessels, spinal cord severed.

A cut would 8 cm x 5 Cm x 3 cm on right chin.

Multiple superficial abrasion over right and left knee.

He issued Ex.P.17, the post-mortem Certificate with his opinion that the deceased would appear to have died of shock and haemorrhage, as a

result of the injury sustained about 12 to 18 hours prior to autopsy.

P.W.13, in the meantime, continued his investigation and seized M.Os.4,5 and 8 to 11 under Mahazar Ex.P.4, attested by P.W.4, At about

12.30 p.m. he searched the house of the first accused and seized M.O.12. He also questioned other witnesses and recorded their statements on

that date. On 17.6.1988 in a cashew garden he arrested A.1. A.2 and A.4 at about 5.00 p.m. and when questioned they gave the statements. The

first accused was thereafter arrested, who produced M.O.1 which was seized under Mahazar Ex.P.8 attested by P.W.4, The second accused

took the police party and produced M.O.2 which was seized under Mahazar Ex.P.9. Accused were sent for remand. At about 8.30 p.m. on

26.6.1988, he arrested the third accused and recorded his statement. Thereafter he was also sent for remand. The material objects were sent to

the court with a request to forward them for analysis and the court by forwarding them obtained Ex.P.13, the report of the Chemical Analyst and

Ex.P.14, the report of the Serologist. After completing the investigation, a final report was filed against the accused on 17.10.1988 u/s 302, read

with Section 34 I.P.C.

When questioned u/s 313, Cr.P.C. the accused have denied their complicity and stated that they were taken from their houses by the police and

that the case had been foisted upon them.

When the post-mortem Doctor, P.W.9 was examined by the prosecution, he gave evidence to the effect that when he conducted autopsy, he

found three injuries on the body of Chithrappal @ Royappan and that injuries 1 and 2 noticed by him are fatal in nature. He has further stated that

injury No. 3 noted by him on the body of the deceased could have been caused on account of the deceased falling from a pial with a height of 2

feet. He issued Ex.P.17, the post-mortem Certificate. He has further opined that the injuries 1 and 2 could have been caused with a weapon like

M. Os.1 and 2. From the evidence of P.W.9, there can be no doubt that Royappan died on account of homicidal injuries sustained by him. The

defence also does not dispute the said fact. We, therefore, hold that Royappan died on account of homicidal violence.

The question that has to be decided by us is whether those injuries which were noticed by the doctor P.W.9 were caused by A.1 and A.2 and

whether A.3 and A.4 shared the common intention of A.1 and A.2 for them to be punished as charged. To prove the case against A.1 and A.2,

the prosecution, before the trial court, examined P.Ws.1 and 2 as the eye-witnesses, P/W.1 is the father of the deceased and P.W.2 is not only the

friend of the deceased but also the son of the landlord, whose land P.W.1 was cultivating on waram basis. It is the evidence of P.W.1 that on the

night of 15/16.6.1988, after taking food, he went to the shed which was situated near the pumpset and had taken his bed. According to him, at

about 1.00 a.m. the deceased accompanied by P.W.2 came there and when asked they told him that they had been to a circus and it was 1.00

a.m. P. Ws.1 and 2 have stated that the deceased and P.W.2 went to the pumpset which was 100 yards away from the thatched shed and took

their bed and sometime thereafter, the deceased asked P.W.2 to go and take his bed with his father P.W.1. According to them at about 3.00 a.m.

PW.1 heard some noises and when woke up, he saw A.1 to A.4 proceeding towards the pumpset and he also woke up P.W.2, Both have

claimed in their evidence that they followed the accused and when they reached the pumpset, they saw the deceased lying on the ground and A.1

and A.2 inflicting one cut each on the neck. According to them, A.3 and A.4 chased them and that they ran towards darkness. We have to now

analyse the evidence to find out whether P.Ws.1 and 2. as claimed by the prosecution, had witnessed the occurrence. Even at the outset, we may

say that there are several suspicious circumstances which create a doubt about their presence at the scene. Both have claimed that the deceased

was done to death at 3.00 am. P.W.2 in his evidence has stated that he had and the deceased left for the circus at about 10.00 p.m. and the show

was over by 00.30 hours on the night of 15/16.6.1988 and that thereafter they went to the pumpset room. There is no evidence on record as to

when the deceased had taken his meal. The post-mortem doctor when conducted autopsy, on internal examination, found 200 gms. of digested

food in the stomach of the deceased. In cross-examination the postmortem doctor. P.W.9 has stated that the deceased would have taken his last

meal at about 9.00 p.m. and the deceased could have died at about 10.00 or 11.00 p.m. The fact that digested food were seen in the stomach,

coupled with the admission of P.W.9 in the cross-examination, creates a doubt in the mind of the Court whether the occurrence had taken place at

3.00 a.m. If the deceased had taken his meal, he must have taken it before 10.00 p.m. on the night of 15.6.1988 or after the circus is over. If the

deceased had taken his meal after the circus, the doctor would not have found the digested food in the stomach since the show was over only at

00.30 hrs. P.W.2 nowhere in his evidence has stated that he had his meal after the circus was over. In the absence of any such evidence, it has to

be concluded that the deceased must have had his last meal before 10.00 p.m. If the deceased had taken his last meal at 10.00 p.m. the

occurrence had taken place at 3.00 a.m. If the occurrence had taken place at 3.00 a.m., the doctor would have found an empty stomach and he

could have noticed only faces in the larger intestine. This aspect is not explained by the prosecution and the Investigating officer also did not care to

investigate this vital aspect.

The case of the prosecution that the deceased and P.W.2 went to watch the circus and returned by 1.00 a.m. On the early hours of

15/16.6.1988 is also highly suspicious. P.W.1 when cross-examined has stated that on the date of incident when his son went for circus, he had no

money and that he did not also give him any money. He has further admitted that when the police officers came and made a search, they did not

find any money in the possession of the deceased and also no tickets evidencing that they had gone to a circus, were seized. P.W.2 in his evidence

has stated that the deceased purchased tickets since he had no money. The evidence of P.Ws.1 and 2 is contradictory on this vital issue. If the

deceased had no money, he could not have purchased the tickets as claimed by P.W.2. The deceased also had no money since P.W.1 had

submitted that no money was given to the deceased on that day. It is also to be remembered, as we have stated earlier, that no tickets were found

and seized either from P.W.2 or from near the dead body. This aspect is also left uncleared by the prosecution. The case of the prosecution that

the deceased asked P.W.2 to go and take his bed with P.W.1, so that he could irrigate the lands cannot also be accepted by us, in view of the

evidence available on record. P.W.2 in cross-examination has admitted that the lands were not irrigated on that night and the motor was also not

switched on. Similarly, P.W.3, the brother of the deceased also in the cross-examination has admitted that the lands were not irrigated and the

motor was also not switched on. In view of the evidence of these two witnesses, the present version that P.W.2 was asked by the deceased to go

and take his bed with P.W.1 so that he could irrigate the lands, has to be rejected and it is accordingly rejected.

Further, it is to be noted at this juncture that though P.W.2 claims in his evidence that he had taken his bed along with P.W.1 by lying on a mat

and that P.W.1 was also lying on another mat which were also pointed out to the police officers, they were not seized. If really, two mats were

there in the thatched shed and were used by P. Ws.1 and 2 to take their bed and shown to the police officer, the Investigating officer would have

certainly recovered them. There is no recovery of such mats by the police officer and there is also no explanation from the side of the prosecution

as to why the mats which were shown to the officer by P.W.2 were not recovered. This vital link also stands unexplained. In this connection, an

useful reference also has to be made to the evidence of P.W.2. who has stated in the Cross-examination that he went to the house of P.W.3 and

informed him that his brother is dead. P.W.2 did not say that he told P.W.3 that the deceased was cut by A.1 and A.2. The evidence of P.W.3

that he heard that the deceased was cut by A.1 and A.2 is only hearsay in nature, since P.W.3 did not say in his evidence that he was informed by

P.W.2 that his brother Chithrappal was cut by A.1 and A.2. If P.W.2 was really present and witnessed the occurrence and later informed the said

fact to P.W.3 he would have certainly given the details to P.W.3 regarding the incident and how it happened. The absence of any such evidence

also indicates that P.W.2 could not have been present along with the deceased at the time of the incident.

On the discussion made above, we are inclined to believe that the occurrence must have taken place much earlier in point of time and the

prosecution wanted to make it appear as if it had taken place at 3 a.m. so that it can be shown there is no delay in laying the complaint. Even here,

we are of the view that the prosecution did not succeed since P.W.1 in his evidence has admitted in the cross examination that he went to the

police station and informed P.W.12 and the statement given by him was reduced into writing, in which his signature was obtained. If this evidence

of P.W.1 is to be accepted, the present version that a complaint was laid with P.W. only at 5 a.m. cannot be true and the first information

statement, Ex.P.1 cannot be the first in point of time. The suggestion to P.Ws. 12 and 13 that there was an earlier information and the same has

been suppressed gains credence in the background of he evidence of P.W.1 which we have extracted above. Even this first information statement

which was given to the Village Administrative Officer at 5.00 a.m. and registered by P.W.12 at 6.30 a.m. has reached the hands of the Magistrate

only at 2.00 p.m. The distance which P.W.11 had to cover, to hand over the first information statement to the Magistrate, is only 40 Kms, and

there is no explanation as to why the first information statement handed over to him by 7.15 a.m. was handed over to the Magistrate at 2.00 p.m.

in the evening. Though the above said delay is not by itself fatal, the other circumstances noted by us creates a doubt whether Ex.P.1 could be the

first information statement in this case. On consideration of the entire facts and circumstances of the case, we are of the view that the prosecution

has not established the case beyond reasonable doubt and the appellants are entitled for an acquittal and accordingly, they are acquitted.

In the result, the appeal is allowed. The bail bonds, if any, shall stand cancelled.