Madras High Court
Raja @ Appasami And Ors. vs State Rep. By Inspector Of Police on 19 June, 2003
JUDGMENT A.S. Venkatachalamoorthy, J.
1. The appellants/accused were tried by the learned I Additional Sessions Judge, Tirunelveli in S.C.No. 99 of 1998 with reference to the murder of one Krishnaswami on the night of 21.7.1997 and were found guilty under Section 302 read with 149 I.P.C. and other offences and were sentenced to undergo life imprisonment. Being aggrieved by the said Judgment, the above appeal has been filed.
2. The case of the prosecution can be set out as under:
(a) A-1 Raja @ Appasamy, A-2 Duraipandi and A-3 Thangadurai are brothers while A-4 Sakthi @ Sakthivel and A-5 Ganesan are their brothers-in-law.
(b) PW-1 Perumal and PW-13 Saravanan are the sons of the deceased Krishnaswami. PW-23 Muthulakshmi is the daughter of the deceased and wife of PW-22 Kathiresan.
(c) PW-1 Perumal and PW-2 Balakrishnan are residents of the village called Thiruvenkadam, while PW-13 Saravanan is a resident of Iyaneri village. Pws.22 and 23 also reside at Thirivankadam. The distance between Iyaneri and Thiruvengadam is just a couple of kilo meters.
(d) PW-1's brother Kaliraj and PW-13 are carrying on business in vending milk. The accused were also carrying on similar business. There has been business rivalry among these two groups. About two months prior to the occurrence, the brother of the accused was beaten by Kaliraj, who is none else than the brother of PW-1 and a complaint was lodged in that regard. In order to bring him out on bail, the deceased, Pws.1 to 3 went to Sankarankoil on 21.7.1997. But however, they could not succeed. Thereafter from Sankarankoil, they proceeded to Thiruvenkadam. Asking Pws.2 and 3 to have dinner in the hotel of PW-22 viz., son-in-law of the deceased, PW-1 and deceased went to the house of PW-23 viz., daughter of the deceased. Thereafter, at about 8.00 p.m. on that day, they proceeded to Kovilpatti and they boarded a bus belonging to the State Transport Corporation. While the deceased was sitting in a seat located three rows from the front entrance, PW-1 was sitting three seats further behind. So also the other two witnesses Pws.2 and 3. When the bus crossed the place called Nakkalamuthampatti and proceeded near Kovilpatti and when proceeding near Melapatti Dhanalakshmi theatre, at about 9.00 p.m. A-1 went near the driver and threatened him with aruval and further directed him to stop the bus. A-2 stabbed the deceased on the neck while A-3 on the face; A-1 on the head and A-4 and A-5 also stabbed on the head. The occupants of the bus raised alarm and ran helter-skelter from the bus. Pws.1 to 3, who also got frightened, ran along with the other passengers. After a short while, PW-1 came back to the spot and finding that the bus was not there, proceeded to the Government Hiospital at Kovilpatti. On enquiry he was informed that the person who was attacked had died. PW-1 thereafter proceeded to see his brother PW-13. Thereafter, both of them went to the Iyaneri village. After informing the relatives and villagers, PW-1 went to the Thiruvenkadam police station at about 1.00 a.m. on 22.7.1997 and gave Ex.P-1 complaint.
(e) PW-19 Sub-Inspector of Police attached to Thiruvenkadam Police station, after receiving the complaint from PW-1, registered Crime No. 158 of 1997 under Section 147, 148 and 302 I.P.C. and prepared express F.I.R. Ex.P-38. He then forwarded Ex.P-1 as well as Ex.P-38 to the Court of Judicial Magistrate and copies to his superiors. Thereafter, he informed the Inspector of Police by wireless.
(f) PW-20 Santhanam was the Inspector of Police, Thiruvenkadam police station at the relevant time. After receiving information from the Sub Inspector of Police by wireless, he proceeded to the police station at 3.30 a.m. and received copy of F.I.R. and proceeded to the scene of occurrence and reached there at about 6.00 a.m. Ex.P-5 observation mahazar and Ex.P-39 rough sketch were prepared by him in the presence of witnesses. Thereafter, Inspector seized the blood stained earth under mahazar Ex.P-6 mahazar. The Inspector of Police then proceeded to the Kovilpatti Government Hospital and conducted inquest over the body of the deceased between 7.30 a.m. and 10.00 a.m. and prepared Ex.P-40 Inquest report. During inquest he examined PW-1 Perumal, Balakrishnan, Karunanidhi and others and recorded their statements. Thereafter he sent a requisition Ex.P-27 to the Doctor to conduct post mortem on the body of the deceased. At about 10.30 a.m. he inspected the bus and prepared an observation mahazar Ex.P-31 and a sketch Ex.P-41 in the presence of witnesses. The blood stains found within the bus were seized under mahazar Ex.P-32 in the presence of witnesses. All the recovered material objects were sent to the Court with a requisition to send them for chemical analysis.
(g) PW-11 Dr. Velusamy was working at the relevant time at the Government Hospital, Kovilpatti. On receipt of requisition Ex.P-27 from the Inspector of Police, conducted autopsy over the body of the deceased and Ex.P-28 is the post mortem certificate. In the said certificate, the Doctor has made the following notings, "Appearance found at the post mortem: Moderate nourished body, symmetrical, blood stained cloth, lies on back, black hair, skin & Irish.
Injuries: 1. A large cut injury on the right side of neck, oblique 16 x 5 x 5 cm starting from posterior aspect of neck - 8 cm below & posterior to the ear right, extending downwards to the right side of chin cutting muscles of neck right internal carotid vessels.
2. A cut injury just below right ear upwards obliquely from the neck to right maxilla of right face cutting the right ear lobe & maxillae bone exposed 5 x 3 x 5 cm. This injury II joints with the injury No. 1 in the posterior side of neck.
3) A cut injury on the right side of the skull - vertical 6 x 2 x 2 cm on right parietal bone - bone cut exposed.
4) An oblique cut injury 4 cm above the right ear with injury No. 3.
5) A cut injury 4 cm above 16 right ear posteriorly oblique 4 x 3 x 2 cm. Cutting the skull injury merges with injury No. 4 on the bottom. Eyelids closed. Tongue kept inside. Teeth complete 8/8 / 8/8.
Internal Examination: Abdomen - Uniform Thorax - No fracture - ribs - Heart 350 gms. Empty - Lungs right 500, left 450 gms. Dry. Hyoid bone intact. Stomach - partially digested rice particles 400 ml present. Liver 1500 gm. Pale. Kidneys 150 gms each Pale. Intestine - Snmall & Large: Empty, pale. Bladder empty. Head - right parietal bone cut in No. 1, corresponding to injury No. 3,4,5 & on 4th injury duramatter exposed. right maxillary bone (face) cut. Membrane of brain intact. Brain 1200 gms pale."
In the post mortem certificate, the Doctor had opined that the deceased would appear to have died of shock and haemorrhage due to cut injuries and the death would have occurred about 12 to 18 hours prior to autopsy.
(h) The Investigating Officer thereafter proceeded further with the investigation and examined witnesses including the bus conductor, driver and the doctor, etc. All the accused surrendered before the Judicial Magistrate, No. II, Srivilliputhur. The Investigating Officer thereafter took steps to get the police custody of the accused and on 31.7.1997 the accused were given to police custody. When enquired on 1.8.1997 at about 7.00 a.m. in the presence of witnesses Kalaivanan and Ponraj, A-1 gave a voluntary confession statement and the admissible portion of the same has been marked as Ex.P-42. Similarly A-2 also gave a voluntary confession statement and Ex.P-43 is the admissible portion of the same. At about 9.00 a.m. A-3 was examined and he gave a voluntary confession statement and the admissible portion of the same is Ex.P-44. The admissible portion of the confession statement given by A-4 is Ex.P-45. At about 11.00 a.m. A-5 was enquired and he also gave a voluntary confession statement and the admissible portion of the same is Ex.P-46. All the accused then took the police party and witnesses and produced the weapons from the place where they had hidden them earlier and those material objects were recovered under mahazar in the presence of witnesses.
(i) On 5.8.1997, the Doctor, who conducted post mortem was examined. The other witnesses were also examined on the subsequent dates. The chemical analysis report is marked as Ex.P-54 and the serologist's report is Ex.P-55. According to the said report, there was no blood stains. The Inspector of Police after completing the investigation, filed his final report.
3. When questioned under Section 313 of Code of Criminal Procedure, all the accused denied having any complicity in the commission of the offence.
4. Now the question is whether the prosecution has proved the case beyond all reasonable doubts.
5. The learned senior counsel appearing for the appellants contended that inasmuch as Pws.2, 3, 22 and 23 have turned hostile, the sole testimony available for the prosecution is that of PW-1, who is none else than the son of the deceased and it would not be safe to rely on his testimony, particularly when there has been enmity between the prosecution party and the accused party. The learned counsel further contended that Pws.22 and 23, who are none else than the kith and kin of the deceased themselves did not support the prosecution case and that there is no other corroborating evidence.
6. On the other hand, the learned Additional Public Prosecutor would contend that the testimony of PW-1 cannot be rejected on the sole ground that he is closely related to the deceased and that if the Court after examining the testimony comes to the conclusion that his testimony infuses confidence of the Court, certainly the Court can act on that. The counsel representing the State would further state that it is not the quantity, but only quality that counts and that the Court can well, if satisfied with the testimony of PW-1, uphold the conviction and sentence.
7. Now the sole question that survives for consideration is whether the testimony of PW-1 infuses confidence of the court and it would be safe on the part of the Court to convict the accused. We have already mentioned that Pws.1 and 13 are the sons of the deceased. A-1 to A-3 are brothers and A-4 and A-5 are brothers-in-law of A-1 to A-3. There has been business rivalry between both the groups. According to the prosecution, the brother of the accused was beaten by the brother of PW-1 by name Kaliraj and in that regard a complaint was lodged and at the relevant time, the case was pending before the Court of Judicial Magistrate, Sankarankoil. According to Pw-1, for the purpose of taking the said Kaliraj on bail, himself, the deceased, Pws.2 and 3 went to the Court. But as they could not succeed, they were returning to their place via Thiruvenkadam. At Thirivenkadam, after asking Pws.2 and 3 to have their dinner at the hotel belonging to PW-22, they went to the house of PW-22 viz., son-in-law, PW-23 being daughter. The further case of PW-22 is that from Thiruvenkadam, the deceased and Pws.1 to 3 proceeded to Kovilpatti for which purpose they boarded a government bus. When the bus crossed a place called Nakkalamuthampatti and reached Melapatti Dhanalakshmi theatre, A-1 went near the driver and called upon him to stop the bus. Thereafter all the accused attacked the deceased on various parts of his body and caused as many as five injuries. The scared bus passengers ran out of the bus including Pws.1 to 3. The further claim of PW-1 is that after some time, he came back and finding that the bus was not there, he proceeded to Kovilpatti Government Hospital and there he was informed that his father had died. PW-1 then proceeded to inform his brother PW-13 and both of them went to Iyaneri village and informed their relatives and thereafter complaint Ex.P-1 was lodged at Thiruvenkadam police station at about 1.00 a.m. on 22.7.1997. The said complaint reached the Court of Judicial Magistrate, Sankarankoil, which is about 18 kms away, at about 6.30 a.m. Ex.P-1 is the complaint lodged by PW-1 to the Sub Inspector of Police. In the said complaint, if carefully perused, it could be seen that PW-1 has not mentioned anything about their visiting the house of Pws.22 and 23, who are son-in-law and daughter of the deceased, at Thiruvenkadam. Only for the first time in evidence PW-1 has come forward with such a story. Pws.22 and 23 have deposed before the Court that only the deceased came to their house and they have not mentioned anything about PW-1. They have been treated as hostile. We would have readily ignored their testimonies on the ground that they are not willing to support the prosecution case and proceeded to consider other evidence but for the fact that they are very closely related to the deceased, which would rather persuade us to come to the conclusion that the story of the prosecution that the deceased and PW-1 came to their house at about 8.00 p.m. on that day is a complete falsehood. The learned Additional Pubic Prosecution would contend that there was enmity for the accused to do away the deceased. Enmity is always a double edged weapon. It may be that because of the enmity PW-1 is inclined to depose falsely and the possibility of PW-1 implicating more accused cannot be ruled out. In this context it is also relevant to note that the deceased had sustained only five injuries.
8. The next aspect of the matter is that immediately after the occurrence Pws.4 and 5, Driver and Conductor of the bus took the bus to the Government Hospital, Kovilpatti. The Doctor who just saw the deceased at 9.30 p.m. on 21.7.1997 has issued accident register and copy of the same is marked as Ex.P-29. In the said document it is clearly mentioned that the accused was attacked by an unknown person. It is also mentioned that the Doctor had informed the Sub Inspector of Police, Kovilpatti Police Station. Pws.4 and 5 Driver and Conductor respectively have categorically stated that after the Doctor informing the Kovilpatti police station, the Police officials came to the hospital and enquired both Pws.4 and 5. In fact, PW-5 in his cross examination has specifically mentioned that both himself and PW-4 had narrated to the Police as to what had happened and that was reduced to writing and their signatures were obtained. But however, the said document has not been placed before the Court. Certainly Pws.4 and 5 have no reason to depose falsely before the Court. The non-production of the said document would go very much against the prosecution and naturally will be in favour of the defence.
9. The third aspect of the matter which we would like to point out is that in Ex.P-1, PW-1 has stated that after going to the Kovilpatti hospital and after coming to know about the death of his father, he straight proceeded to see his brother PW-13. But however, this has not been mentioned in the FIR.
10. In the light of what we have discussed above and pointed out, we are of the considered opinion that it is totally unsafe to rely on the sole testimony of PW-1. We hold that the appellants/accused are not guilty of the offences as found by the Sessions Court.
11. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the appellants/accused under various sections are hereby set aside. All the appellants/accused are acquitted of all the charges framed against them. The appellants/accused shall be released forthwith, unless they are required in connection with some other case. The fine amount paid by the appellants/accused shall be refunded to them.