Senthil @ Chinna Chetty, Muthurathinavel, Saravanan @ Periya Chetty and Singaru @ Singaravelan vs State <BR>State Vs Senthil @ Chinna Chetty and Others <BR>Suresh Vs Senthil @ Chinna Chetty and Others

M. Chockalingam, J.—This judgment shall govern C.A. Nos. 240, 391 and 659 of 2000 and Crl. R.C. No. 402 of 2001. C.A. No.

240/00 is by A-2 to A-5 and C.A. No. 391/00 is by A-1 against their conviction and sentence, while C.A. No. 659/00 is preferred by the State

against the acquittal of A-2 to A-7, while Crl. R.C. No. 402/01 is by P.W.3 aggrieved over the judgment of acquittal by the trial court.

Appellants, seven in number, stood charged before the Addl. Sessions Court, Nagapattinam in S.C. No. 187/99 under the following provisions

of law and were also found guilty as stated below. A-6 and A-7 were charged u/s 147 IPC, but were acquitted; A-1 to A-5 were charged u/s

148 IPC and on being found guilty they were each sentenced to one year rigorous imprisonment and also directed to pay a fine of Rs. 500/= with

a default sentence of three months. A-1 and A-2 were charged u/s 341 IPC and on being found guilty each one of them was directed to pay a fine

of Rs. 500/= with a default sentence of three months simple imprisonment. A-1 on being found guilty u/s 302 IPC as charged, was sentenced to

imprisonment for life and also directed to pay a fine of Rs. 1,000/= with a default sentence of six months rigorous imprisonment. A-6 and A-7

though were charged u/s 302 read with 114 IPC, were acquitted. A-2 to A-5 though were charged u/s 302 read with 149 IPC were found guilty

u/s 324 read with 149 IPC and each one of them was sentenced to rigorous imprisonment for one year and each one of them was directed to pay

a fine of Rs. 500/= with a default sentence of three months rigorous imprisonment.

The short facts necessary for the disposal of these appeals and the revision could be stated thus :-

P.W.1 is a native of Tiruvarur residing at Thozhuvangudi street. P.W.2 is residing at Mada street. P.W.3 is also a resident of the said place. The

appellants also belong to Tiruvarur. P.W.1, the cousin brother of the deceased Kumaran, was a graduate and he was unemployed. He participated

in the auction conducted for the cycle stand at Government Hospital, Tiruvarur, and came out successful in the auction. In the year 1998 an auction

for the brandy shop at Tiruvarur was conducted and one of the accused by name R.D. Murthy and the deceased, Kumaran, participated in the

said auction. In that auction, R.D. Murthy developed a grudge against the deceased. The auction took place just a week or ten days prior to the

occurrence.

On the evening hours of 12.5.98 when P.W.1 was in his house along with P.W.2, at about 7.00 p.m., the deceased Kumaran came in a motor

bike. He was in the house of P.W.1 for fifteen minutes and, thereafter, he left. When the deceased left the house of P.W.1, P.W.s 1 and 2

followed him suspecting that he might face some trouble at the hands of the accused. When they were nearing the junction of Mudaliar street and

Melkadai street, A-2 came in a TVS-Moped and waylaid the deceased. The deceased slowed down his vehicle. At that time A-1 cut him with

aruval on the neck. A-2 also cut him. The deceased fell down. P.W.s 1 and 2 shouted. Not satisfied, A-3 and A-4 also cut the deceased with

aruval and following the same A-5 and A-7 also cut him. The deceased met with an instantaneous death.

Immediately P.W.1 proceeded to his house and after informing his relations he went to Tiruvarur Town police station where P.W.14, the

Inspector of Police was present at that time. He gave a complaint, which stands marked as Ex.P-1 on the basis of which a case came to be

registered in crime No. 343/98 under Sections 147, 148, 341, 302 and 326 IPC. The express first information report, Ex.P-2, was despatched to

court.

P.W.14, on taking up investigation, proceeded to the scene of occurrence and prepared an observation mahazar, Ex.P-5 in the presence of two

witnesses. He also drew a rough sketch, Ex.P-18. The place of occurrence and the dead body were photographed through P.W.11, the

photographer and M.O.17 series are the photographs and M.O.18 series are the negatives. From the scene of occurrence bloodstained earth,

M.O.3, sample earth, M.O.4 and motor bike, M.O.1 were all recovered under the cover of a mahazar. In the presence of witnesses and

panchayatadars the investigating officer conducted inquest over the dead body of the deceased and prepared inquest report, Ex.P-19. After

inquest, the dead body was sent along with a requisition to the doctor for conducting autopsy.

On receipt of the requisition, P.W.12, the doctor attached to the Tiruvarur Government Hospital, conducted autopsy on the dead body of the

deceased and found the following injuries :-

1) Recent, clear-cut-edged, incised wound of varying depths involving skin, superficial and deep fascia and muscles on front and sides of neck

and cutting horizontally the internal and external carotid arteries and jugular veins on both sides extending from right ear lobe level to the middle of

neck, one cut; the other cut extending from left ear-lobe level to middle of neck with an 1 cm bridge of normal skin at mid point of neck with dark

blood clots.

2) The trachea (air passage) and oesophagus (the food passage) severed totally.

3) The spinal cord, the brain substance, the membranes and skull-bone not involved.

4) 3 cm long incised wound, 4 cm deep over left chest, below nipple, which does not involve the heart or lung.

5) Recent, clear cut edged incised wounds with dark blood clots without puss are found in other places, viz.,

-- 4 cm x 2 cm right shoulder front oblique cuts.

-- 1-1/2 cm x 1 cm right upper arm front oblique cuts.

-- 2 cm x 1 cm right upper arm (two in number) oblique cuts.

-- 2 cm x 1 cm right upper arm near elbow oblique cuts.

-- 2 cm x 1 cm right upper arm near elbow oblique cuts.

-- 2 cm x 1 cm left shoulder (two in number).

-- 6 cm x 1/2 cm left forearm back.

-- 6 cm x 2 cm right thigh (vertical) cut.

-- 2 cm x 1 cm right knee horizontal cut.

-- 1 cm x 1 cm left knee horizontal cut.

-- 6 cm x 1/2 cm buttocks both horizontal cut.

-- 2 cm x 1 cm - left hip horizontal cut.

-- 5 cm x 1 cm right chest oblique cut.

-- 8 cm x 3 cm - right hip - oblique cut. No bone level.

The doctor issued Ex.P-12, the post-mortem certificate, opining that the deceased died on account of sudden loss of blood from major blood

vessels followed by Hypovolemic shock.

P.W.14, continuing with his investigation, arrested A-1, A-2 and A-4 on 13.5.98. A-5 was arrested on 14.5.98. A-3 and R.D. Murthy

surrendered before the Judicial Magistrate, Nagapattinam on 18.5.98. A-1 gave a confessional statement, which was recorded by the officer in the

presence of two witnesses. Ex.P-7 is the admissible portion of the said statement, pursuant to which he produced M.O.s 5 to 11, the weapons of

crime, which were recovered under a mahazar, Ex.P-14. All the accused were sent to court for remand. The material objects were sent to court

along with a requisition to send them for analysis. Accordingly, the material objects were subjected to analysis and the court received Ex.P-17, the

report of the chemical analyst and Ex.P-18, the report of the serologist. On completion of the investigation, the investigating officer filed the final

report against all the accused. The case was committed to the court of sessions and necessary charges were framed against the accused except

one R.D. Murthy in respect of whom a separate case was conducted.

In order to substantiate the charges framed against the appellants, the prosecution marched fourteen witnesses and relied on twenty exhibits and

eighteen material objects. On completion of the evidence on the side of the prosecution, the appellants were questioned u/s 313 Cr.P.C. on the

incriminating circumstances found in the evidence of the witnesses. They denied all the incriminating circumstances. The appellants examined three

witnesses as D.W.s 1 to 3 to the effect that the said witnesses were present at the time of occurrence and that none of the accused was involved in

the said act. On seeing the occurrence, D.W.1 informed P.W.1 and D.W.2 informed some other relations and only after that P.W.1 has given the

complaint. The trial court, after hearing the arguments advanced by both sides and on scrutiny of the materials found the accused guilty and

awarded the punishment as referred to above. Hence, C.A. Nos. 240 and 391 of 2000 at the instance of the accused aggrieved over their

conviction and sentence and C.A. No. 659 of 2000 by the State against the acquittal of A-2 to A-7 while Crl. R.C. No. 402 of 2001 is by P.W.3

aggrieved over the judgment of acquittal of the accused.

Mr. B. Sriramulu, learned senior counsel appearing for the appellants inter alia submits that in order to substantiate the charges, the prosecution

has examined P.W.s 1 to 6 as eye witnesses, but it is highly doubtful whether any one of the witnesses would have been present at the time of the

occurrence. In the instant case out of the six witnesses two have turned hostile. Thus the prosecution had to mainly rely on the evidence of P.W.s 1

to 3. Insofar as P.W.3 is concerned, his name was not found in the first information report, while insofar as P.W.2, his name does not find a place

in the inquest and thus what was available for the prosecution was only the evidence of P.W.1. Insofar as the evidence of P.W.1 is concerned, it is

thoroughly untrustworthy. It is also pertinent to point out that he was closely related to the deceased. In the instant case, P.W.1 has not mentioned

anything about A-6 and A-7 in his original report, but he has developed the case by including A-6 and A-7 at the time of evidence. At one stage

he would say that he prepared the complaint in his house and went to the police station, but at yet another place he would say that the report was

prepared at the police station. Apart from the above discrepancies, it is the very case of the prosecution that the auction took place a week or ten

days prior to the occurrence and the deceased was visiting the house of P.W.1 thereafter on all days, but P.W.1 did not take any steps to follow

him on any one of the days to give him protection, but he went only on the date of occurrence, which is highly artificial and improbable.

In the instant case, delay is noticed at every point of time. The occurrence, according to the prosecution, has taken place at 7.45 p.m. The

police station is situate within a distance of half a kilometre. The case was registered, according to the prosecution at about 8.30 p.m., but the first

information report has reached the court only at about 2.45 a.m. the early morning. The explanation that was offered was that the first information

report was taken to the Judicial Magistrate, Tiruvarur and since he was on leave, the first information report was taken to the Judicial Magistrate,

Nagapattinam, but from the evidence of the constable it would be clear that he took the first information report from the police station only by 1.45

a.m. Had it been true that the case came to be registered at 8.30 p.m., in a case of murder like this, such a delay till 1.45 a.m. is fatal to the

prosecution case and no explanation was forthcoming from the prosecution for the delay. Apart from the above, according to the prosecution,

P.W.1 was the informant. The investigating officer at the time of giving evidence has clearly stated that he examined P.W.1 and recorded his

statement and he specifically asked P.W.1 whether anybody knew about the occurrence for which P.W.1 informed the investigating officer that no

one else knew about the occurrence and, hence, their names were not mentioned therein. Such a statement of P.W.1 has reached the Magistrate

along with the inquest report only on 14.5.98 at 0045 hours. In the instant case, the occurrence has taken place on 12.5.98 at about 7.45 p.m.; the

case came to be registered within forty-five minutes. If to be so, the prosecution is duty bound to explain as to how the delay was caused.

From the evidence of P.W.1 it would be clear that he has not informed anybody at the earliest and it is highly doubtful whether P.W.1 could

have seen the occurrence at all and the delay caused in taking the printed first information report to the court after the registration of the crime

would throw a doubt whether P.W.1 could have seen the occurrence at all. Added further the learned senior counsel, insofar as the other accused

R.D. Murthy is concerned, the case against him was split up and the same was taken up as a separate sessions case and the witnesses, who were

examined in this case were examined in that case also, but all of them turned hostile and that case ended in acquittal and the State has not preferred

any appeal therefrom. In the circumstances, the learned senior counsel would further add that there is no reason to suspect or reject the evidence

of the defence witnesses to the effect that they witnessed the occurrence and that the appellants were not involved and it was D.W.1 who informed

P.W.1 about the occurrence and thereafter P.W.1 had gone to the police station. Added further the learned senior counsel that there is evidence to

show that the deceased has got number of enemies during the relevant point of time and the evidence of P.W.1 stands uncorroborated and the

evidence of P.W.1 is filled with doubts and suspicions and, hence, it would be highly unsafe to find the appellants guilty, which the trial court has

failed to appreciate and therefore, the appellants are entitled for an acquittal at the hands of this Court.

The Court heard the learned Government Advocate (Crl. Side) appearing for the State on the above contentions and also perused the

recorded evidence, both oral and documentary.

The cause of death of Kumar stands established through the evidence of the doctor, P.W.12, who conducted autopsy and who issued Ex.P-

12, the post-mortem certificate. It is very clear from the evidence of the doctor that the deceased died an account of sudden loss of blood from

major blood vessels followed by Hypovolemic shock. The said fact was not disputed by the appellants either before the trial court or before this

Court. On the medical evidence this Court holds that the deceased died on account of homicidal violence.

In the instant case, the question that arises for the consideration of this Court is whether the prosecution has proved the case beyond

reasonable doubt pointing to the involvement of the appellants in the crime. After careful analysis of the evidence and the submissions made by

either side, this Court has to give an answer in the negative.

The prosecution relied not on circumstantial evidence, but on the evidence of the eye witnesses. Insofar as the eye witnesses are concerned,

P.W.s 1 to 3 were mainly relied on by the prosecution. It is pertinent to point out that the name of P.W.3 does not find a place in the first

information report, though P.W.1 would claim that he was present and talking to him at the place of occurrence. It is pertinent to point out that

P.W.3 was the brother of the deceased and a relative of P.W.1 and had it been true that P.W.3 was present at the time of occurrence, the said

fact would have been stated by P.W.1. Insofar as P.W.2 is concerned, though he claimed to be present at the time of occurrence, the said fact is

disputed by the investigating officer and apart from that in the inquest report, he was not shown as one of the witnesses examined. This would

clearly reveal that had the inquest taken place as putforth by the prosecution immediately following the registration of the crime, the name of P.W.2

would have been shown, but it is not so. Apart from that, the clinching answer from the mouth of the investigating officer, P.W.14 that when he

enquired P.W.1 as to the fact whether anybody knew about the occurrence, P.W.1 informed him that no one was present and, therefore, it was

not mentioned so. This would clearly reveal that no one else except P.W.1, even according to the evidence of P.W.1, was available at the time of

occurrence.

Therefore, P.W.1 is the only witness whose evidence has got to be looked into and analysed. P.W.1 is the cousin brother of the deceased

and, therefore, his evidence has got to be subjected to careful analysis as required by law. In the instant case, it is highly doubtful whether he would

have been an eye witness to the occurrence for more reasons than one. Even according to the case of the prosecution, the auction, which was the

motive for the occurrence, took place a week or ten days prior to the occurrence, but the police officials did not care to examine anyone

connected to or concerned with the said auction to show that the appellants were also involved in the said auction. Even according to P.W.1, the

deceased was coming to his house even on the previous days also, but on those occasions neither P.W.1 nor anyone followed him for giving

protection, but on the date of occurrence, P.W.1 thought it fit to follow the deceased along with P.W.1, which is highly improbable to accept and

believe. It is the specific evidence of P.W.1 that he followed the deceased along with P.W.2 in a TVS-Moped, but in the instant case the presence

of P.W.2 is unacceptable by the evidence referred supra and P.W.1 also in his evidence would state that after the occurrence he did not either go

to the police station or go to inform the members of the family of the deceased, but he went to his house, prepared a report and went to the police

station thereafter. But at a later point of time, P.W.1 would say that the complaint was prepared at the police station; but P.W.14, the investigating

officer, who registered the case would say that P.W.1 gave him instructions and on his dictation Ex.P-1 was written by him. All the above would

go to show that Ex.P-1 did not come into existence as putforth by the prosecution.

Further in the instant case, the occurrence took place at 7.30 p.m. and a case came to be registered at 8.30 p.m., but the printed first

information report had reached the Magistrate only by 2.45 a.m. on the morning of the next day. If to be so, the prosecution is duty bound to offer

acceptable explanation for such a long delay in the first information report reaching the Magistrate in a grave case of murder. The only explanation

offered by the prosecution before the trial court was that after registration of the crime, the first information report was taken by a constable to the

Judicial Magistrate, Tiruvarur and since he was on leave the constable thereafter took it to Judicial Magistrate, Nagapattinam and handed over the

first information report at about 2.45 a.m. But there is an admission by the same constable that he took the first information report from the police

station only by 1.45 a.m. If to be so, from the time of registration at 8.30 p.m., as claimed by the prosecution, how such a delay of nearly four

hours took place in handing over the first information report is not explained acceptably. In the instant case, not only a delay is noticed in the first

information report reaching the Magistrate, but the statement of P.W.1, which according to the prosecution, was recorded during inquest, which

was within a short time from the registration of the crime, but the said statement of P.W.1 and the inquest report reached the Court only on

14.5.98 at 0045 hours. Had it been true that the inquest was conducted as putforth by the prosecution and the statement of P.W.1, the material

witness was recorded, why such delay has occurred in sending the same to the Magistrate and this Court is also unable to understand as to the

necessity for the said statement and the inquest report to be handed over to the Magistrate during the night hours on 14.5.98. Apart from the

above, the statement of the other witnesses, P.W.s 2 to 7 have reached the court only on 18.5.98. Had it been true that they were all eye

witnesses to the occurrence, why there was such a long delay in sending them separately from that of P.W.1 and all the above remains unknown.

In the instant case, it is also brought to the notice of the court that insofar as R.D. Murthy, the case against him was split up and the witnesses,

who were examined in this case were examined thereto and all of them turned hostile and the case ended in acquittal and the State has not

preferred any appeal. In the instant case, as putforth by the learned senior counsel, the narrated suspicions attendant over the prosecution case and

evidence of the eye witnesses remains unreliable and the delay in the first information report reaching the court and the delay in sending the inquest

report along with the statement of the material witness, P.W.1 and the doubt whether the first information report could have come into existence as

putforth by the prosecution and the above discrepancies and material contradictions in the evidence would suffice, in the opinion of this Court, to

cause an acquittal and finding the appellants not guilty. It is also to be pointed out that in a case like this where the only witness is P.W.1 and the

evidence of the other witnesses have been rejected for the reasons stated supra and P.W.1 being closely related to the deceased and his evidence

not being corroborated and it does not remain beyond doubts and suspicions, it would be highly unsafe to find the appellants guilty, as has been

done by the trial court, and the appeals filed by the appellants have got to be allowed.

In result, the appeals, C.A. Nos. 240 and 391 of 2000 filed by the appellants are allowed. The appeal, C.A. No. 659 of 2000 and the

revision, Crl. R.C. No. 402 of 2001 filed by the State and P.W.3 respectively deserves to be dismissed and accordingly they are dismissed. The

conviction and sentence imposed on the appellants by the trial court are set aside and they are acquitted of all the charges framed against them.

Fine amounts, if any, paid by the appellants shall be refunded. Bail bonds executed by them shall stand cancelled.