State vs V. Chinnathambi and Others

S. Nagamuthu, J.—The respondent Nos. 1 to 5 in Criminal Appeal (MD) No. 300 of 2006 are the respondent Nos. 2 to 6 in Crl. RC.

(MD). No. 441 of 2006 are the accused in S.C. No. 5 of 2001, on the file of the learned Second Additional Sessions Judge/Fast Track Court

No. II, Tuticorin. The respondents 7 to 12 in Crl. RC. (MD). No. 441 of2006 are the accused 6 to 12 in the said case. Thus, altogether, there

were eleven accused in the said case. There were as many as five charges framed against the accused as detailed infra. By judgment dated

7.4.2006, the Trial Court acquitted all the eleven accused. Aggrieved over the same, the State has come up with Criminal Appeal (MD). No. 300

of 2006 challenging the acquittal of the accused Nos. 1 to 5 alone. The State has not preferred any appeal in respect of the rest of the accused 6

to 11. The petitioner in Crl. RC. (MD) No. 441 of 2006 is the wife of the deceased and she is also the first witness for the prosecution during trial.

Challenging the acquittal of all the eleven accused, she has come up with Crl. RC. (MD). No. 441 of 2006. That is how, the above Criminal

Appeal (MD). No. 300 of 2006 and Crl. RC. (MD). No. 441 of 2006 are now before this Court for disposal. Since both these matters arise out

of the same judgment, they have been heard together and they are disposed of by means of this Common judgment.

There were as many as five charges framed against the accused by the Trail Court. The first charge is against all the eleven accused u/s 148 of

the Indian Penal Code; the second charge is against the fifth accused alone u/s 324 of the Indian Penal Code; the third charge is against the

accused 6 to 11 u/s 341 of the Indian Penal Code; the fourth charge is against the accused Nos. 1 to 5 u/s 302 read with 149 of the Indian Penal

Code and the fifth charge is against the accused 6 to 11 u/s 302 read with 149 of the Indian Penal Code.

The case of the prosecution, in brief, is as follows:

The deceased, in this case, was one Mr. Sankarapandi. P.W.1 is the wife of the deceased. P.W.2 is the sister-in-law of the deceased. P.W.4 is

the mother of the deceased. Twelve years prior to the occurrence, one S. Krishnakonar, S/o. Sundarakonar was murdered. The deceased -

Sankarapandi and his brother - Narayanan, viz., the husband of P.W.2 were the accused in the said murder case. The said case ended in acquittal.

Thereafter, in the year 1996, in the local panchayat election, the said Narayanan contested. The deceased supported the said Narayanan. One Mr.

Mookkakonar contested against the said Narayanan. Ultimately, the said Narayanan won the election. The accused belonged to the faction led by

Mookkakonar. Because of the above two instances, the accused was inimical towards the deceased. This is projected as a motive for the

occurrence.

3.1. On 12.4.2000, at about 8.45 p.m., P.W.1, P.W.2 and P.W.4 had gone to the Mukkani Main Bazaar, taking the daughter of P.W. 1 for

treatment. They were actually proceeding towards the house of a doctor. They were coming from north towards south. When they were nearing a

hotel, run by one Mr. Krishnamoopanar, they found the deceased and P.W.3 standing in front of the hotel talking to each other. On seeing the

deceased, P.W.1, P.W.2 and P.W.4 went near him and told him that P.W. 1''s daughter was unwell. At that time, since the then Hon''ble Chief

Minister was about to make a visit in the said area, there were lot of tube lights set up on the side of the road, and thus, there was enough light to

witness the occurrence.

3.2. Suddenly, from inside the hotel of the said Krishnamoopanar, the accused Nos. 1 to 5 ran out towards the deceased. The fifth accused - M.

Manthiram was in possession of a knife and the others were armed with sickles. On nearing the deceased, the first accused attempted to cut the

deceased on his neck. The deceased warded off the same by his left hand. The cut fell on the left wrist. P.W.3 raised alarm. At once, the fifth

accused cut P.W.3 on his leg. The deceased attempted to escape and ran towards east through Pallikooda Street. P.W.1 and P.W.4 cried for

help. But, the accused did not stop. They chased the deceased. Leaving the child in the custody of P.W.4, P.W.1 and P.W.2 also ran following

them. When the deceased was running from east, the accused 6 to 11 intercepted him. Therefore, the accused took a different direction and

rushed towards north. When he reached a vacant site, accidentally, he fell down. By the time, the accused reached him. The second accused cut

the deceased with sickle on his right shoulder. The third accused cut him on his hip. The fourth accused cut him on his leg. The first accused

beheaded the deceased with sickle. He carried the head in one hand and the sickle on the other hand. Thus, the occurrence was witnessed by

P.W.1 and P.W.2. Thereafter, all the four accused ran towards the main road. The first accused left the head of the deceased at Ambetkar Street

and all the five accused fled away from the scene of occurrence.

3.3. After the occurrence, P.W.1 to P.W.3 went to the Athoor Police Station. On 12.4.2000, at about 10.30 p.m., P.W.17, the then Head

Constable, attached to the Athoor Police Station, was on duty. P.W.1 to P.W.3 appeared before him and P.W.1 gave a complaint orally. P.W.17

reduced the same into writing. P.W.1 and P.W.3 signed the same. The said complaint is Exhibit P-1. Based on the same, he registered a case in

Crime No. 54 of 2000 under Sections 147, 148, 307 and 302 of the Indian Penal Code. Then, he forwarded the complaint, Exhibit P-1 and the

First Information Report, Exhibit P-25 to the Court and handed over the case diary to P.W.23 for investigation.

3.4. P.W.23 was the then Inspector of Police, attached to the Arumuganeri Circle. On receipt of the information about the registration of the case

over wireless, he reached the Police Station at 11.30 p.m., on 12.4.2000. Taking up the case for investigation, he reached the place of occurrence

at 11.45 p.m. He prepared an Observation Mahazer, Exhibit P-2 at the place of occurrence in front of the hotel and also a Rough Sketch, Exhibit

P-36, showing the place of occurrence in the presence of the witnesses. Then, he went to the place, where the dead body of the deceased was

lying. There, he prepared an Observation Mahazer, Exhibit P-3 and a Rough Sketch, Exhibit P-37, on 13.4.2000, at 2.00 a.m. He received

information that the beheaded head of the deceased was lying at Ambetkar Street. Then, near the head, he conducted inquest between 2.00 a.m.

and 3.30 a.m. and prepared Exhibit P-38, Inquest Report. Then, between 3.40 a.m. and 5.30 a.m., he conducted another inquest on the place,

where the trunk of the deceased was found. Exhibit P-39 is the Inquest Report. Then, he recovered bloodstained earth and sample earth from the

place of occurrence, where the trunk was lying. On the same day, at 6.00 a.m., from the place, where the head was lying, he recovered

bloodstained earth and sample earth in the presence of the witnesses. Then, at 6.30 a.m., he recovered a pair of chappels found near

Lakshminarayanan Sound Service. Then, he forwarded the trunk and the head for postmortem.

3.5. P.W.19, Dr. S. Abubacker, was an Assistant Surgeon, attached to the Kayalpattinam Government Hospital. On 13.4.2000, at about 9. AM,

while he was on duty, P.W.3 appeared before him for treatment in respect of the injuries sustained by him. He told him that the deceased was

attacked by three unknown persons and when he attempted to save the deceased, he was cut by one of the assailants. He noticed the following

injury:

An incised wound of chest 1 X 1/2 X 1/2 across the right ankle.

Exhibit P-31 is the Accident Register. He opined that the injury is simple in nature.

3.6. Then, on 13.4.2000, at 10.00 a.m., he conducted autopsy on the body of the deceased. He found the following injuries:

A transverse cut injury just over the lateral of right wrist. Wound is 3"" X 2"" X 4"". This injury has pierced and has come out over the palmar

aspect. Wound over the palmar aspect - 2"" X 1/2"". Wrist bones are cut.

A transverse cut injury over the middle of right upper arm. Wound is 6"" X 3 X 2"". Muscles cut. Bones not involved.

Another transverse cut injury just above wound. Wound ix 6"" X 4"" X 2"". Muscles cut. Bones cut involved.

An oblique cut injury over and above the back of right shoulder. Wound is 7"" X 4"" X 3"". Muscles cut. Bone viewed through cut injury.

A cut injury placed obliquely over the right angle of abdomen wound is 4"" X 2"" X 2"".

A cut injury 4"" away from right nipple, Wound is 2"" X 2"" X 2.

A transverse cut injury placed obliquely over the outer part of middle of right thigh. Wound is 7"" X 3"" X 3"". Bone not involved.

A sliced cut injury starting from and just above the right knee extending to the outer part of right thigh. Wound is 9"" X 3"" X 3"". Skin flap is

present. Muscles were cut. Bone not involved.

A cut injury just below right knee encircling the leg. Wound 5"" X 3"" X 4"". Muscles were cut. Both bone fractured.

A cut injury below Wound No. 9. Wound is 4"" X 3"" X 4"". Muscles were cut fibula fractured.

Exhibit P-33 is the Postmortem Certificate. He opined that the deceased would appear to have died of shock and hemorrhage due to the

decapitated multiple injuries.

3.7. Continuing the investigation, P.W.23 arrested the accused 1, 2 and 6 on 17.4.2000, at 4.30 p.m., in the presence of P.W.13 and another

witness. On such arrest, the first accused gave a voluntary confession, in which he had disclosed that near Govankadu Bus Stand, he had hidden a

sickle. At 5.40 p.m., the second accused gave a voluntary confession, in which he had disclosed that near a bridge, he had hidden the weapon. At

6.45 p.m., the sixth accused gave a voluntary confession, in which he had disclosed the place, where he had hidden the weapon. In pursuance of

the said respective disclosure statements, the respective accused took the police and the witnesses to the respective places and produced the

weapons. P.W.23 recovered all the material objects under different mahazers. On 23.4.2000, at 3.00 p.m., at Pullaveli Vilakku, he arrested the

accused Nos. 8 and 9 in the presence of P.W. 13 and another witness. On such arrest, the eighth accused gave a voluntary confession, in which he

had disclosed the place, where he had hidden the Vettu Aruval. Similarly, the ninth accused gave a voluntary confession, in which he had disclosed

the place, where he had hidden another Vettu Aruval. In pursuance of the said respective disclosure statements, the respective accused took the

police and the witnesses to the respective places and produced the weapons. P.W.23 recovered the same under independent mahazers.

3.8. On 26.4.2000, at 6.00 a.m., he arrested the eleventh accused in the presence of P.W. 14 and another witness. On such arrest, he made a

voluntary confession. At that time, he had kept the vettu aruval on his back into the shirt. The accused produced the same. P.W.23 recovered the

same under a mahazer in the presence of the witnesses. On 27.4.2000, at 12.00 noon, he arrested the third accused at Tiruchendur - Tuticorin

Road, Ramachandrapuram Bus Stop in the presence of P.W.13 and another witness. On such arrest, he gave a voluntary confession, in which he

had disclosed the place, where he had hidden the aruval. In pursuance of the same, the third accused took the police and the witnesses to the said

place and produced the aruval from the hide out and the same was recovered under a mahazer. On 5.5.2000, he examined P.W.1, P.W.2 and the

other witnesses, including the doctor and recorded their statements. On 16.5.2000, since he was transferred, he handed over the case diary to his

successor.

3.9. P.W.20, the then Inspector of Police, attached to the Arumuganeri Circle, took up the case for further investigation. He made a request to the

Court to forward the Material Objects for chemical examination. On such examination, the chemical analyst had submitted a report under Exhibit

P-28 to Exhibit P-30. Finally, on completing the investigation, he laid charge sheet against the accused.

Based on the above materials, the Trial Court framed appropriate charges, as detailed in the third paragraph of this judgment. The accused

pleaded innocence. Therefore, they were put on trial. In order to prove the charges, on the side of the prosecution, as many as twenty four

witnesses were examined and thirty nine documents were exhibited, besides twenty one Material Objects. Out of the said witnesses, P.W.1 to

P.W.4 have been examined as eye-witnesses to the occurrence. P.W.3 has turned hostile. P.W.1, P.W.2 and P.W.4 have spoken to about the

occurrence. To be precise, P.W.4 has spoken to only about the first occurrence, which had taken place in front of the hotel. P.W. 1 and P.W.2

have spoken to about the first occurrence and also the second occurrence, in which the deceased was done to death. P.W.5 to P.W.9 have turned

hostile and they have not supported the case of the prosecution in any manner. P.W. 10 is the brother of the deceased, who has spoken to about

the motive, viz., about the earlier murder case, in which he along with the deceased was accused and the panchayat election motive. P.W. 12,

P.W. 13 and P.W. 15 have spoken to about the arrest of the accused and the consequential recoveries of the respective material objects. P.W. 17

has spoken to about the registration of the case. P.W. 19 has spoken to about the treatment given to P.W.3 and also the postmortem conducted

by him. P.W.20 and P.W.23 are the officers, who investigated the case.

When the above incriminating materials were put to the accused u/s 313 of the Code of Criminal Procedure, they denied the same as false.

However, they did not choose to examine any witness on their side nor to exhibit any document in their defence. Having considered the above

materials, the Trial Court acquitted all the accused of all the charges. That is how, the State is aggrieved, and thus, the State has come up with Crl.

A. (MD) No. 300 of 2006 and P.W. 1 has come up with Crl. R.C. (MD) No. 441 of 2006.

We have heard the learned Additional Public Prosecutor appearing for the State, learned counsel appearing for the Revision Petitioner, learned

senior counsel appearing for the accused/respondents and we have also perused the records carefully, including the judgment of the Trial Court.

As we have already pointed out, the prosecution relies on the evidences of P.W.1, P.W.2 and P.W.4 to prove the charges against the accused.

P.W.3, who was examined to speak about the occurrence, has turned hostile and his evidence is of no use to prove the case of the prosecution.

As we have pointed out earlier, P.W.4, the mother of the deceased, has spoken to about the first occurrence, which allegedly had taken place in

front of the hotel and P.W.1 and P.W.2 have spoken to about both the occurrence. The Trial Court has disbelieved the evidences of P.W.1,

P.W.2 and P.W.4, and accordingly, acquitted the accused.

In this Criminal Appeal, it is the contention of the learned Additional Public Prosecutor as well as the learned counsel appearing for the Revision

Petitioner that the reasons stated by the Trial Court for disbelieving the evidences of P.W.1, P.W.2 and P.W.4 are not at all tenable. According to

them, P.W. 1, P.W.2 and P.W.4 are the natural eye-witnesses, whose presence, at the place of occurrence, cannot be doubted at all. It is the

further contention that these three witnesses have vividly spoken to about the occurrence and there are no reasons to reject their evidences. They

have further stated that the medical evidence duly corroborates the eye-witness account of P.W. 1, P.W.2 and P.W.4. They have also submitted

that the recoveries of the Material Objects at the instance of the accused also go to strengthen the case of the prosecution. Thus, according to

them, the Lower Court ought to have convicted the respondents/accused under all the charges.

But, the learned senior counsel appearing for the respondents/accused would stoutly oppose the Criminal Appeal as well as the Criminal

Revision Petition. According to him, the First Information Report, in this case, is a doubtful document. The Trial Court has held that the First

Information Report would not have come into being, as it is projected by the prosecution, and thus, it is a doubtful document.

The learned senior counsel would also contend that it has been admitted by the Investigating Officer that a sniffer dog was brought to the place

of occurrence and it services were utilized. The learned senior counsel would further contend that had it been true that the assailants of the

deceased were known and had it been true that P.W.1, P.W.2 and P.W.4 were the eye witnesses to the occurrence, there would have been no

need at all for the Investigating Officer to get the services of the sniffer dog. He would also submit that the services of the sniffer dog would be

requisitioned by the police only in a case, where the assailants are not known. In this regard, the learned senior counsel would rely on a judgment

of the Hon''ble Supreme Court in Gorles Naidu v. State of U.P. (2004) SCC Supp 462. The learned senior counsel would also submit that though

it is alleged that the occurrence had taken place in a big bazaar, which is a busy locality and though it is admitted that number of persons were

available, no independent witness has been examined. According to the learned senior counsel, no explanation has been offered for the same. He

would, nextly, contend that in respect of the place of occurrence, there are lot of contradictions, as pointed out by the Lower Court.

He would also submit that according to P.W.19, Dr. S. Abubacker, P.W.3 was sent with a police memo to him for treatment for the injuries

sustained by him in the very same occurrence. At that time, P.W.3 told that the deceased was attacked by three unknown persons and when he

attempted to prevent the said attack, he also sustained injuries at the hands of one of the assailants. The learned senior counsel would also submit

that this is the earliest information passed on to an independent authority, which should carry weightage. He would further submit that though it is

alleged by P.W.2 that she knows the names of all the eleven accused and though it is the case of the prosecution that P.W.1, P.W.2 along with

P.W.3 had gone to the Police Station to prefer complaint, the names of the accused 6 to 11 did not find a place in the First Information Report.

Thus, according to the learned senior counsel, the assailants would not have been known and the First Information Report has been concocted

later on, implicating the accused 1 to 5 and later on, the case was further developed to implicate the accused 6 to 11. The learned senior counsel

would further submit that the deceased had number of murder cases against him and had lot of enemies. Because of the said inimical atmosphere,

in which he was living, the deceased would have been done to death by some other enemies. But, out of suspicion and because of the motive,

these accused have been falsely implicated by the prosecution. Thus, according to the learned senior counsel, for these reasons, the Trial Court

was right in acquitting the accused, which does not require any interference at the hands of this Court.

We have considered the above submissions. At the outset, we would like to state that in an appeal against acquittal, when two views are

equally possible, unless the view taken by the Trial Court is an impossible view, it is not at all permissible for this Court to substitute the contra

view in the place of the view taken by the Trial Court. On re-appreciating the entire evidence, if this Court is able to come to a conclusion that the

view taken by the Trial Court is patently erroneous and the same is not at all a possible view, then only, it will be within the purview of this Court to

substitute it''s view in the place of the view taken by the Trial Court.

With the above broad legal principle in mind, let us now analyze and re-appreciate the evidences of P.W. 1, P.W.2 and P.W.4. Admittedly,

P.W.1, P.W.2 and P.W.4 are the family members of the deceased and they are highly interested and also inimical towards the accused. The

motive between the accused and the deceased has been clearly established by the prosecution. But, it is also on record that the deceased had

number of enemies, because he was involved in a number of murder cases. The fact that he had number of other enemies cannot be simply

ignored, for the reasons, which we are going to discuss later on in this judgment. Since P.W.1, P.W.2 and P.W.4 are closely related to the

deceased and belonged to the family of the deceased and since they are inimical towards the accused party, their evidences require close scrutiny.

Nextly, it is not as though there was no independent witness present at all at the time of occurrence. The occurrence had taken place in a busy

locality, viz., in a main bazaar of the village. Admittedly, there were number of independent persons available at the scene of occurrence. But,

unfortunately, there is no evidence available on record from any independent source. Thus, the prosecution has been left with the evidences of

P.W.1, P.W.2 and P.W.4, who are highly interested witnesses.

In this background, now, we have to very closely scrutinize the evidences of P.W. 1, P.W.2 and P.W.4. After the occurrence, P.W. 1 to

P.W.3 had gone to the Police Station to prefer complaint. According to the evidence of P.W.2, she knows the names of all the eleven accused.

P.W.1 has stated that he knows the names of the accused Nos. 1 to 5. However, she has not stated as to whether she knows the names of the

fathers of the accused Nos. 1 to 5. Had it been true that the names of the accused Nos. 6 to 11 were known to P.W.2, certainly, when Exhibit P-

1, complaint was drafted, the names of the accused Nos. 6 to 11 would have been mentioned. P.W.2 is a signatory to the complaint, Exhibit P-1.

There is no explanation offered by the prosecution as to why the names of the accused Nos. 6 to 11 were not mentioned in Exhibit P-1. This

creates initial doubt in the case of the prosecution.

It is the admission of P.W.23 that he had requisitioned the services of sniffer dog. Accordingly, the sniffer dog was brought to the place of

occurrence. It is the contention of the learned senior counsel that as the assailants were not known, the sniffer dog was brought to the place of

occurrence. In this regard, the learned senior counsel has relied on the judgment of the Hon''ble Supreme Court in Gorles Naidu v. State of U.P.

(supra). In the said case also, in an identical situation, the Hon''ble Supreme Court disbelieved the eye - witness account relying on the fact that the

sniffer dog was brought to the place of occurrence.

In the case on hand also, it is not explained to the Court as to why the sniffer dog was brought, when the assailants were very well known.

Thus, we find some force in the argument advanced by the learned senior counsel that the names of the assailants were not known and that is the

reason why, the services of the sniffer dog were utilized by P.W.23. The Trial Court has given due weightage of for this circumstance.

Nextly, P.W.3 claims to have sustained injury in the very same occurrence. According to the case of the prosecution, when P.W.3 attempted

to rescue the deceased from further assault by the assailants, he sustained injuries at the hands of one of the assailants. He was referred to the

Government Hospital for treatment. P.W.19, Dr. S. Abubacker examined him. At the earliest opportunity, P.W.3 told the doctor that when the

deceased was attacked by three unknown assailants, he attempted to rescue the deceased, in which he also sustained injuries at the hands of one

of the assailants. P.W.3 is a signatory to the complaint, Exhibit P-1. From the entry made in the Accident Register by P.W.19, it is crystal clear

that until 3.00 a.m., on 13.4.2000, the assailants were not known. The First Information Report, in this case, is stated to have been registered at

10.30 p.m. and the same had reached the jurisdictional magistrate only at 6.30 a.m. Had it been true that the assailants were known and that the

First Information Report was registered really at 10.30 p.m., certainly, at 3.00 a.m., on 13.4.2000, P.W.3 would have told the doctor that he was

attacked by the known persons. This important circumstance would go to show that the First Information Report would have come into being only

after 3.00 a.m., on 13.4.2000, and thereafter, it had reached the learned Judicial Magistrate at 6.30 a.m. Thus, the First Information Report, in this

case, is a doubtful document for more than one reason, as narrated above.

Nextly, the Lower Court has pointed out material contradictions among the evidences of P.W.1, P.W.2 and P.W.4 in respect of the place of

occurrence. We do not wish to elaborate on this aspect, as we are satisfied that the Lower Court was right in holding that the place of occurrence

has not been spoken to consistently by P.W. 1, P.W.2 and P.W.4. This would also go to show that P.W. 1, P.W.2 and P.W.4 would not have

witnessed the occurrence at all. As we have pointed out earlier, the presence of P.W. 1, P.W.2 and P.W.4 is only by a mere chance. Their houses

are not situated anywhere near the place of occurrence.

In view of the above improbabilities, more particularly, the arrival of the sniffer dog, the statement made by P.W.3 to the doctor and all the

other attending circumstances, in our considered view, the Lower Court was right in holding that P.W. 1, P.W.2 and P.W.4 would not have

witnessed the occurrence at all. The other theory put forwarded by the accused that the deceased had lot of enemies, because he was involved in a

number of murder cases and that the assailants were not known is probable.

Now, turning to the recoveries of the Material Objects, in our considered view, much weightage cannot be given, since as rightly pointed out

by the Lower Court, it is too hard to believe that some of the accused were keeping the aruvals inside the shirt on their back. In any view of the

matter, based on the recoveries of the Material Objects, the accused cannot be found guilty.

As we have already pointed out, unless the view taken by the Trial Court is an impossible view, it is not at all possible for this Court to

substitute any other view in the place of the view taken by the Trial Court. In this case, we do not find any other view, which is equal to the view

taken by the Trial Court.

From the narration of the facts and the discussion made above, we hold that the view taken by the Trial Court is the only view, which could be

reasonably arrived at. In short, we hold that the Trial Court was right in acquitting the accused. Thus, we do not find any merit in this Criminal

Appeal and in the Revision Petition. In the result, the Criminal Appeal fails and the same is dismissed. Consequently, the Criminal Revision Petition

is also dismissed and the acquittal of the respondents/accused is hereby confirmed.