Madras High Court
Jeyapal vs The State Rep. By on 1 February, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.No.72 of 2007 1.Jeyapal 2.Athali 3.Modathi alias Raman .. Appellants vs The State rep. by Inspector of Police Mannachanallur Police Station Trichy Crime No.5/2006 .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge (Fast Track Court-I), Trichy, made in S.C.No.115 of 2006 dated 30.10.2006. !For Appellants ... Mr.Veera Kathiravan ^For Respondents ... Mr.V.Kasinathan Additional Public Prosecutor :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) This appeal has arisen from the judgment of the Additional Sessions Division, Fast Track Court-I, Tiruchirapalli, made in S.C.NO.115 of 2006 whereby four accused stood charged and tried as follows:
I. A-2 Under Sections 449, 342, 302 read with 114 and 506(2) of IPC II. A-1 Under Sections 302, 449 and 506(2) of IPC III. A-3 & A-4 Under Sections 449, 302 read with 114 and 506(2) of IPC
2.On trial, A-1 was found guilty under Sections 302 and 449 of IPC and sentenced to undergo life imprisonment and 6 months RI respectively. A-2 was found guilty under Sections 449, 342 and 302 read with 114 of IPC and directed to suffer life imprisonment and 6 months RI for each offence under Sections 449 and 342 of IPC respectively. A-3 was found guilty under Sections 449 and 302 read with 114 of IPC and sentenced to undergo life imprisonment and 6 months RI respectively. A-1 to A-3 were acquitted of the charge under Sec.506(2) of IPC, while A-4 was acquitted of all the charges. Aggrieved over the said conviction and sentence, the appellants three in number, have brought forth this appeal before this Court.
3.The short facts necessary for the disposal of this appeal can be stated thus:
(a) P.W.1 is the daughter-in-law of the deceased Ayyamperumal, and P.W.2 is her husband. They are all residents of Thannerikottam. On the date of occurrence i.e., 8.1.2006, she accompanied her husband to the field. On reaching the field, the deceased and P.W.1 found A-3 doing some unlawful work in their field. They were cutting their vaikal. On seeing this, the deceased questioned A-3. There arose a quarrel. Following the same, both A-1 and A-2 rushed over there, and A-2 held the deceased. A-1 attacked him with an aruval on the shoulders and also on the head. A-3 also attacked him with a spade. The occurrence was also witnessed by P.Ws.1 and 2. They made a distressing cry.
Immediately, the accused fled away from the place of occurrence. They found Ayyamperumal dead. Then, P.W.1 proceeded to the respondent police, where P.W.13, the Sub Inspector of Police, was on duty. She gave Ex.P1, the report, on the strength of which a case came to be registered in Crime No.5/2006 under Sections 341, 302 and 506(2) of IPC. The printed First Information Report, Ex.P12, was despatched to the Court.
(b) On receipt of the copy of the FIR, P.W.15, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P2, the observation mahazar, and Ex.P15, the rough sketch. Then, he conducted inquest on the dead body of Ayyamperumal in the presence of witnesses and panchayatdars and prepared Ex.P16, the inquest report. The dead body was sent to the Government Hospital for postmortem along with a requisition, Ex.P9.
(c) P.W.12, the Police Surgeon and Professor of Forensic Medicine, KAPV Government Medical College, Tiruchirapalli, on receipt of the said requisition, conducted autopsy on the dead body of Ayyamperumal and gave a postmortem certificate, Ex.P10, wherein he has stated that the deceased died of cranio- cerebral, thoracic cage and other wounds.
(d) On 9.1.2006, A-1 was arrested. He gave a confessional statement voluntarily, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P4, pursuant to which M.O.5, aruval, M.O.3, spade, M.O.6, wooden log, and M.O.4, kuthukol, were produced, which were recovered under a cover of mahazar, Ex.P5, in the presence of witnesses. A-3 and A-4 were also arrested the very day, and they were all sent for judicial remand. A-2 was actually hospitalised at Tiruchirapalli Government Hospital. The Investigator went over there and recorded the statement of A-2, on the strength of which a case came to be registered in Crime No.6/2006 under Sections 323 and 324 of I.P.C. The FIR was also sent to the Court in that case. Since Crime No.5/2006 is the present case and Crime No.6/2006 is at the instance of A-2, where the place of occurrence is the same, no separate mahazar or sketch was prepared. All the material objects recovered from the place of occurrence and the material objects recovered from the accused pursuant to the confession, were subjected to chemical analysis, and the Forensic Sciences Department gave reports namely Exs.P19 and P21, the Chemical Analyst's report, and Ex.P11, the Serologist's report. They were all received by the Judicial Magistrate's Court. On completion of investigation, the Investigator filed the final report.
4.The case was committed to Court of Sessions along with the accused. On committal, the trial Court framed necessary charges against the accused. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 21 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, all the accused were questioned under Sec.313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The Court below heard the arguments advanced, made a thorough scrutiny of the materials available and found A-1 to A-3 guilty as stated above, while it acquitted A-4 of all the charges. Aggrieved over the said conviction and sentence, A-1 to A-3 have brought forth this appeal.
5.Advancing the arguments on behalf of the appellants, the learned Counsel with vigour and vehemence in short, brought to the notice of the Court the following points:
(i) The prosecution, to start with, had the only one eyewitness, P.W.1.
P.W.1 is none else than the daughter-in-law of the deceased. Though the prosecution came out with a case to state that she accompanied her father-in-law to the field where the occurrence has taken place, and she was also an eyewitness, at the time when she was examined, she has stated in chief that she went to the field on hearing the information that her father-in-law was done to death, and thus, this part of the evidence has put an end to the prosecution story that she was an eyewitness. Even then, the prosecution was not satisfied and further examined her on the next hearing date. At that time, she gave a new story as if she has seen the occurrence. In view of the evidence on record, she should have been treated hostile, but not done so.
(ii) Even as per the prosecution case, P.W.2 was not an eyewitness; but, the evidence was developed through P.W.1 as if P.W.2 was an eyewitness. P.W.1 has categorically admitted in the cross-examination that all her relations including her husband, came to the spot only after knowing about the occurrence. Thus, P.W.2 could not have seen the occurrence, and it can be well stated that no one could have seen the occurrence at all. Thus, there was no evidence available for the prosecution.
6.Added further the learned Counsel that in the instant case, Crime No.6/2006 was registered by the same Investigating Officer when A-2 was taking treatment at Tiruchirapalli Government Hospital; that the Investigator has also well admitted that the scene of occurrence is the same, and A-2 had injuries which were actually sustained by him in the course of the same transaction; that if to be so, the prosecution should have explained the injuries sustained by A- 2; but, P.W.1 has categorically admitted that no one of the accused had sustained injuries, and thus, the prosecution had no explanation to offer; that apart from that, the prosecution is thoroughly lacking in evidence; that it has failed to prove the complicity of any one of the accused; that the lower Court has not considered the same, but entered a judgment of conviction and sentenced them to imprisonment, and hence, the judgment of the lower Court has got to be set aside.
7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
8.It is not a matter of controversy that one Ayyamperumal, the father of P.W.2 and the father-in-law of P.W.1, was done to death in an incident that took place at the time and place as put forth by the prosecution. In order to prove the fact that he died out of homicidal violence, the dead body was subjected to postmortem. In that regard, the prosecution has not only examined the Doctor, P.W.12, who conducted autopsy, but also marked the postmortem certificate through him, wherein he has categorically opined that Ayyamperumal died out of cranio-cerebral, thoracic cage and other wounds. The fact that he died out of homicidal violence was never the subject matter of controversy before the lower Court. Hence, it has got to be recorded so.
9.In order to substantiate the accusation made against all the accused, the prosecution rested its case on the direct evidence by examining P.Ws.1 and
2. P.W.1 is the daughter-in-law, and P.W.2 is the son of the deceased It is true that merely on the ground of relationship, their evidence need not be discarded. But, the Court has to exercise the careful scrutiny test. If applied, their evidence would not stand the scrutiny.
10.At the outset, it is to be pointed out that even as per the prosecution case, it was P.W.1, who accompanied Ayyamperumal. P.W.1 at the time of examination, has categorically admitted in chief that she went to the spot after hearing the information of the death of her father-in-law, and hence, the prosecution cannot claim that she was an eyewitness. The prosecution was not satisfied with the evidence of P.W.1, and it has examined P.W.2. But, P.W.1 at the time of cross-examination, has categorically admitted that all the other witnesses came to the scene of occurrence only after getting the information about the incident. Hence, they could not have seen the occurrence at all. In short, it can be stated that the prosecution has miserably failed in projecting the case through the direct evidence.
11.Apart from the above, the prosecution has got a major infirmity in not explaining the injuries sustained by A-2. Admittedly, the Investigator met A-2 while he was under treatment at the Government Hospital, Tiruchirapalli. The statement of A-2 was recorded by him pursuant to which he registered a case in Crime No.6/2006 under Sections 323 and 324 of the Indian Penal Code. The Investigator has categorically admitted that the injuries sustained by A-2, were in the course of the same transaction, which is the subject matter of Crime No.5/2006, and because of which, he did not prepare any independent sketch or an observation mahazar. Once it is the admitted case of the prosecution that A-2 has sustained injuries at the time of the same occurrence, a duty is cast upon the prosecution to explain how such injuries were sustained by A-2. Now, P.W.2 has claimed that no injuries were sustained by A-2; but, the prosecution has admitted that fact. If to be so, either P.W.1 was not an eyewitness to the occurrence at all, or she has suppressed the entire episode.
12.Now, at this juncture, it can be well commented upon the genesis of the occurrence which is actually not made known. It is also found to be a serious flaw on the prosecution case. This Court is of the considered opinion that if these infirmities are noticed, then the recovery pursuant to the confession, will not bring home the guilt of the accused. The lower Court without appreciation of this part of the case, has entered the judgment of conviction, which, in the opinion of this Court, has got to be made undone by upsetting the same, and the appellants/accused are entitled for acquittal.
13.In the result, this criminal appeal is allowed setting aside the judgment of conviction and sentence passed by the lower Court. The appellants are acquitted of the charges levelled against them. The first appellant/A-1 who is in prison, is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The bail bonds executed by A-2 and A-3, shall stand terminated.
nsv/ To
1.The Additional District and Sessions Judge Fast Track Court No.I Tiruchirapalli
2.The Inspector of Police Mannachanallur Police Station Trichy Crime No.5/2006
3.The Additional Public Prosecutor Madurai Bench of Madras High Court