Selvan @ Selvaraj vs State by Inspector of Police

D. Murugesan, J.—The appellant, the sole accused put on trial in S.C. No 360 of 2004 on the file of the learned Principal Sessions Judge,

Coimbatore, was found guilty, convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-. in default to undergo

rigorous imprisonment for one year for the offence u/s 302 IPC. The appeal is directed questioning the veracity of the said judgment.

The prosecution case in brief is as follows:

The appellant and P.W. 4-Savithri are the husband and wife. The deceased-Raman @ Ramasamy, a resident of Annadasampalayam village, was

working as Night Watchman at the field of one Marimuthu. P.W. 4-Savithri is closely related to the deceased. During rainy season, the deceased

used to stay in the house of P.W. 4. Hence the appellant suspected the fidelity of his wife for having illicit intimacy with the deceased. Due to the

above suspicion, there were wordy altercations between the appellant and P.W. 4. Just two days prior to the occurrence, the appellant scolded his

wife-P.W. 4. for her illicit intimacy with the deceased. At about 6.00 a.m., on 30.5.2004, the appellant hit the deceased with/ the wooden handle

of a spade on the backside of his head and back indiscriminately, to which he succumbed. The above act of the appellant was witnessed by

P.Ws..2 & 3.

P.W. 1, the son-in-law of the deceased, was informed and he lodged the complaint, Ex.P-1 at 12.00 noon to P.W. 8, the Sub Inspector of

Police attached to Sirumugai Police Station, which was registered in Cr. No. 179 of 2004 for the offence u/s 302 IPC. He forwarded the printed

First Information Report, Ex.P-10 to the Judicial Magistrate, Mettupalayam and also the copies of the report to the superior officials.

P.W. 9, the Inspector of Police attached to Sirumugai Police Station, after taking up investigation, proceeded to the scene of occurrence at

about 1.45 p.m., on the same day and prepared an Observation Mahazar, Ex.P-2 and also drew a rough sketch, Ex.P-11 in the presence of P.W.

5 and another witness. He thereafter conducted inquest on the body of the deceased between 3.00 p.m., and 6.00 p.m., in the presence of the

witnesses and prepared the inquest report, Ex.P-12. He gave a requisition under Ex.P-6 and sent the body of the deceased through the Head

Constable to the Mettupalayam Government Hospital for conducting post-mortem.

P.W. 7, Assistant Surgeon attached to Mettupalayam Government Hospital., conducted post-mortem on the body of the deceased between

7.10 a.m., and 8.10 a.m., on 31.5.2004 and he noted the following external injuries:

Lacerated injury 7.5 cm x bone deep on left occipital region. O/D fracture of skull bone with corresponding underlying area of skin injury (1),

6.5 cm in length in left occipital region.

Contusion 25 cm x 5 cm over the back in lower thoracic region. O/D clotted blood seen underneath the contused skin.

O/D Skull: Membranes ruptured in the corresponding left occipital injury with blood clots seen underneath the ruptured membrane. (b) Multiple

haemorrhage seen in left and back side of the brain corresponding to the external injury No. 1.

He issued the post-mortem certificate, Ex.P-7 with his final opinion under Ex.F-9 that the deceased would appear to have died of shock and

haemorrhage due to injury to vital organs, brain and skull 24 to 30 hours prior to post-mortem.

P.W. 9, continuing with his investigation, recovered the bloodstained earth, M.O. 2, sample earth, M.O. 3, bloodstained towel, M.O. 4,

bloodstained bedsheet, M.O. 5 under the mahazar,, Ex.P-3 in the presence of P.W.5 and another witness. He caused photographs of the scene

place and K.O. 6 series are the said photographs and negatives. He examined P.Ws. 1,2,3,4,5 and other witnesses and recorded their statements.

He recovered the bloodstained full sleeve shirt, M.O.7, bloodstained lungi, M.O. 8, underwear, M.O. 9, waistcord, M.O. 10 worn by the

deceased from the Head Constable under the special report, Ex.P-13. He arrested the appellant on 1.6.2004 at about 10.15 a.m., near Pethikuttai

bus stop in the presence of P.W. 6 and another witness. In pursuance of the admissible portion of his confession under Ex.P-4, he recovered the

bloodstained wooden handle of the spade, M.O. 1 nearby a forest bush under the mahazar, Ex.P-5 in the presence of the same witnesses. He

brought the appellant to the police station and remanded him to judicial custody. On the basis of the requisition given under Ex.P-14, he received

the chemical analyst''s report, Ex.P-16 and the serologist''s reports, Exs.P-17 & P-18. He examined P.W. 6 and the other witness and recorded

their statements. He also examined the post-mortem doctor, P.W. 7 on 15.7.2 004 and recorded his statement. After completing investigation and

after obtaining legal opinion from the Government Advocate on 16.7.2004, he laid the charge sheet against the appellant for the offence u/s 302

IPC before the Court.

To prove the charges against the appellant, the prosecution examined 9 witnesses, marked 18 exhibits and produced 10 material objects.

When the appellant was questioned u/s 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied

each and every incriminating material as false and pleaded not guilty. No witness was examined and no document was marked on the side of the

defence. The learned trial Judge, however, found the appellant guilty, convicted and sentenced him for the offence as stated above.

Mr. S. Sathiachandran, learned counsel for the appellant would submit that the prosecution has failed to prove the case beyond reasonable

doubt. According to the learned counsel, two witnesses, P.Ws.2 & 3 examined on behalf of the prosecution as eye-witnesses, have not come out

with a true version and their evidence cannot be believed in view of the material contradictions. According to the learned counsel, P.W.2 has

stated that at the time when the occurrence had taken place P.W. 3 was inside the house and P.W. 3, on the other hand, has also deposed that he

witnessed the occurrence. According to P.W. 2, even the place of occurrence has not. been established, as there are contradictions in the

evidence of P.Ws. 2 & 3 since P.W. 2 has stated that the occurrence had taken place inside the house and P.W. 3 has stated that the occurrence

had taken place outside the house. In this context, the learned counsel would also draw our attention to Exs.P-2. & P-11 as to the contradictions

relating to the place of occurrence. He would also submit that P.W. 5, who was examined to speak about the Observation Mahazar, Ex.P-2 and

the seizure mahazar, Ex.P-3, has specifically stated that he did not know the contents of the observation mahazar, Ex.P-2 and the seizure mahazar,

Ex.P-3 in respect of the recovery of M.Os.2 to 5 from the place of occurrence. Hence the prosecution has failed to prove the recovery also. He

would further submit that P.W.6, the Village Administrative Officer also has stated that he did not know the appellant previously, except the date

on which he gave the confessional statement. Hence his evidence cannot be relied upon as he was not sure about the appellant. He would also

submit that the medical evidence does not corroborate the nature of injuries allegedly inflicted by the appellant on the deceased. For all these

reasons, the learned counsel submitted that the accused is entitled for an acquittal.

Mr. V.R. Balasubramanian, learned Additional Public Prosecutor, on the other, hand, would submit that the contradictions in the evidence of

P.Ws.2 & 3 as submitted by the learned counsel for appellant are minor in nature and those contradictions cannot be a ground to disbelieve the

entire prosecution case. He would submit. that so far as the attack of the deceased with the wooden handle of a spade on the backside of the head

and back of the deceased is spoken to by both the eye-witnesses and particularly, their evidence is consistent with regard to the time and date and

the preparation of the observation mahazar, Ex.P-2 and seizure mahazar, Ex.P-3 have been spoken to by P.W. 5. Though P.W. 5 has stated that

he did not know the contents of Exs.P-2 & P-3, the same should be considered with reference to his evidence as to the fact of the appellant giving

a confessional statement and the consequential recovery made pursuant to the admissible portion cf the confessional statement. Equally, P.W. 6,

the Village Administrative Officer, has also spoken about the arrest and recovery and merely because he did not know the appellant previously,

that will not falsify his evidence. He would also submit that the medical evidence as to the nature if injuries and the cause of death corroborates the

version of P.Ws. 2 & 3. Hence the prosecution has established its case beyond reasonable doubt and the judgment of the Court below needs no

interference.

We have given our careful consideration to the rival contentions and also perused the records placed before us including the judgment of the

Court below. As far as the motive aspect is concerned, the prosecution has come forward with a case that the deceased is closely related to P.W.

4-Savithri. As the deceased was working as a Night Watchman in a nearby land belonging to one Marimuthu, whenever there was rain, he used to

stay in the house of P.W. 4. This fact is spoken to by P.W. 1, the son-in-law of the deceased. The evidence of P.W. 1 on this aspect has been

corroborated by the evidence of P.W. 3. So far as the suspicion of the appellant on the fidelity of his wife-P.W. 4 for having illicit intimacy with the

deceased is concerned, P.W. 1 has spoken about the same and the evidence of P.W. 1 is corroborated by the evidence of P.W. 3. P.W. 3 is an

independent witness and has spoken about the motive namely, the suspicion of the appellant as to the alleged illicit intimacy of the deceased and his

wife-P.W. 4.

So far as the occurrence is concerned, P.W. 2, an independent witness, has categorically deposed that while he was going to milch the cows

on the morning of the date of occurrence, he heard the noise from the house of the appellant and P.W. 4, and when he went inside the house, he

saw the appellant attacking the deceased on the backside of his head indiscriminately with the wooden handle of a spade and on seeing P.W. 2,

the appellant ran away from the place. P.W.3 has also spoken about the occurrence corroborating the evidence of P.W. 2. The contradiction as

put forth by the learned counsel is that P.W. 2 has stated that the occurrence had taken place inside the house, but P.W. 3 has stated that the

occurrence had taken place outside the house. A careful reading of the evidence of P.Ws. 2 & 3 does not indicate any such contradiction. Both

P.Ws. 2 & 3 were outside the house only, as at the time of occurrence the deceased was sitting in front of the house and the appellant and P.W. 4

alone were inside the house and the appellant came out and hit the deceased on the backside of his head. Both P.Ws. 2 & 3 have consistently

stated that the deceased was attacked by the appellant just in front of the house only. The other contradiction namely, that the presence of P.W. 3

was not mentioned by P.W. 2 is concerned, it is seen from the evidence that though P.W.2 has not spoken about the presence of P.W. 3 but

P.W.3 has spoken about the presence of P.W. 2, in our considered view, it is only a minor contradiction, as the occurrence had taken place in the

early morning and merely because P.W. 2 has not noticed the presence of P.W. 3, that will not lead us to disbelieve the prosecution case in its

entirety. It has been settled that the prosecution case cannot be disbelieved on minor, contradictions. From the evidence of P.Ws. 2 & 3, the fact

that the appellant had attacked the deceased on the backside of his head to which the deceased succumbed has been established.

That apart, P.W. 5, an independent witness, has spoken about the preparation of observation mahazar, Ex.P-2 and the seizure mahazar, Ex.P-

In chief examination, he has categorically deposed that while he was present, the police came at 1.15 p.m., to the scene of occurrence and

prepared the observation mahazar, Ex.P-2 and also seized the M.Os.2 to 5 under the mahazar, Ex.P-3. He has also specifically admitted that he

signed in both the documents. Having said so, in cross-examination he has stated that he did not know as to what was written in those documents.

So long as P.W. 5 has admitted the preparation of the observation mahazar, Ex.P-2 and the seizure of the material objects under Ex.P-3, merely

because he did not know the contents of the documents will not falsify the documents as such, more particularly, when he has admitted his

signature in both the documents. P.W. 6, the Village Administrative Officer, has also spoken about the confessional statement given by the

appellant and the admissible portion of the said statement was marked as Ex.P-4. He has also spoken that pursuant to the admissible portion of the

confessional statement, the appellant had produced the wooden handle of the spade, M.O. 1 and the seizure of the same under the cover of

mahazar, Ex.P-5. He has also admitted that he signed in the said mahazar. The evidence of P.W. 6 is questioned -on the ground that he did not

know the appellant earlier. In our considered view, merely because P.W. 6 did not know the appellant earlier, that by itself cannot throw any

suspicion over the admissible portion of the confessional statement and the consequential recovery so long as the Village Administrative Officer has

not controverted the confessional statement and the consequential recovery and also his signature in the mahazar. Hence we find no force in the

challenge to the evidence of P.W. 6 as well.

The prosecution has also proved its case as to the injuries sustained by the deceased. Both P.Ws. 2 & 3 have spoken about the injuries on the

deceased namely, on the backside head of the deceased. The post-mortem doctor, P.W. 7 has also found three injuries on the backside of the

head and one injury on the back of the deceased. The place where the deceased sustained injuries has been specifically spoken to by P.Ws. 2 &

The medical evidence therefore corroborates the evidence of P.Ws. 2 & 3. The post-mortem doctor, P.W. 7 has also opined that the injuries

could have been caused by the weapon like M.O. 1.

The above discussion on the evidence of P.Ws. 2,3,5,6 & 7 would undoubtedly establish the guilt of the appellant for having committed the

murder of the deceased. As the motive has also been established, the mens rea for committing the murder is also established. For all these reasons,

we find no case is made out to acquit the appellant of the charge of murder. 16. Accordingly, the criminal appeal fails and it is dismissed. It is seen

from the records that the appellant is on bail. The learned Principal Sessions Judge, Coimbatore shall take steps to secure the presence of the

appellant and commit him to prison to undergo the sentence imposed.