Madras High Court
Santhanam @ Santhanakumar vs State Represented By on 2 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
Crl.A(MD)No.23 of 2011
and Crl.A(MD)No.25 of 2011
1.Santhanam @ Santhanakumar
2.Esakithurai @ Thurai .. Appellants in
Crl.A(MD)No.23 of 2011
3.Saravanan
4.Murugan
5.Ganesan .. Appellants in
Crl.A(MD)No.25 of 2011
Vs.
State represented by
The Inspector of Police,
Central Police Station,
Tuticorin District.
(Crime No.38 of 2006). .. Respondent in
both Crl.As.
PRAYER: Appeals are filed under Section 374(2) of the Code of Criminal
Procedure against the Judgment and conviction passed by the learned
Additional and Sessions Judge, Fast Track Court No.II, Tuticorin, in
S.C.No.98 of 2007, dated 11.01.2011.
!For Appellants : Mr.V.Kathirvelu
in both Crl.As. Senior Counsel for
Mr.K.Prabhu for
M/s.Kathirvelu Associates.
^For Respondent : Mr.A.Ramar,
in both Crl.As. Additional Public Prosecutor.
:COMMON JUDGMENT
(Common Judgment of the Court was made by S.NAGAMUTHU, J) The appellants are the accused 1 to 5 in S.C.No.98 of 2007, on the file of the learned Additional and Sessions Judge, Fast Track Court No.II, Tuticorin. The Trial Court framed as many as five charges. The first charge was against all the five accused under Section 148 I.P.C.; the second charge was against all the five accused under Section 341 I.P.C.; the third charge was against the second accused under Section 302 I.P.C.; the fourth charge was against the accused 1,3,4 and 5 under Section 302 read with 149 I.P.C. and the fifth charge was against all the five accused under Section 404 I.P.C. By Judgment, dated 11.01.2011, the Trial Court convicted all the five accused under all the charges. For the offence under Section 148 I.P.C., the Trial Court sentenced all the five accused to pay a fine of Rs.500/- each, in default to undergo rigorous imprisonment for one month; for the offence under Section 341 I.P.C., the Trial Court sentenced all the five accused to pay a fine of Rs.100/- each, in default to undergo simple imprisonment for one week; for the offence under Section 302 I.P.C., the Trial Court sentenced the second accused to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one year; for the offence under Section 302 read with 149 I.P.C., the Trial Court sentenced the accused 1,3,4 and 5 to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for one year and for the offence under Section 404 I.P.C., the Trial Court sentenced all the five accused to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default to undergo rigorous imprisonment for one month. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellants are before this Court, with these Criminal Appeals.
2.The case of the prosecution, in brief, is as follows:
(i)The deceased in this case was one Mr.Lala @ Manivannan. P.W.1 is his brother. Mr.Lala @ Manivannan had two wives. His second wife is Mrs.Selvaprabha (P.W.5). Mrs.Selvaprabha's sister has been given in marriage to the first accused. Thus, the first accused and the deceased are co-
brothers. The father-in-law of the accused and the deceased was running a furniture shop under the name and style of Alankar Agency. After the demise of their father-in-law, their mother-in-law, Mrs.Vijaya, was running the shop. The deceased wanted to divide the said property between his wife and the wife of the first accused. Mrs.Vijaya, their mother-in-law, also agreed for the same. The property was accordingly divided. But, while dividing the movable properties, the deceased demanded Rs.2,00,000/- as according to his assumption, the total value of the movable properties was Rs.4,00,000/-. But, the first accused did not agree for the same. This resulted in a quarrel between them, which culminated into an enmity between themselves. After the above incident, the deceased and his wife Mrs.Selvaprabha (P.W.5) were staying at the house of P.W.1. The first accused was staying with his wife in Muthammal Colony, i.e., in a different area.
(ii)On 08.02.2006, the deceased closed his shop after business hours at 11.45 p.m. P.W.1 also had a shop in the New Bus Stand at Tuticorin. After closing his shop, he came to the shop of the deceased. Then, P.W.1 and P.W.2 were proceeding through a lane to reach the car of the deceased. The deceased went ahead of P.W.1. On reaching the car, the deceased was about to open the front door of the car. At that time, suddenly, five people emerged there. In the said assembly, the first accused was found with an aruval in his hands. The first accused suddenly cut the deceased on his head. The deceased tried to escape. But, he fell down. He was, indiscriminately, thereafter cut by the other four persons. [According to the case of the prosecution, the other four persons are the accused 2 to 5 herein]. Then, all the five accused fled away from the scene of occurrence. The deceased died instantaneously. According to P.W.1, he witnessed the occurrence in the street light. The time of occurrence was 12.10 a.m. on 09.02.2006. Then, P.W.1 proceeded to the Police Station. He made a complaint to P.W.11 at 12.45 a.m. on 09.02.2006. P.W.11, the then Sub Inspector of Police, attached to Tuticorin Central Police Station, registered a case in Crime No.38 of 2006 under Sections 147, 148, 341, 302 read with 149 and 379 I.P.C. Ex.P.9 is the First Information Report. He forwarded Ex.P.1 and Ex.P.9 to the learned Judicial Magistrate through P.W.9. P.W.9 handed over the same to the learned Judicial Magistrate at 07.00 a.m. on 09.02.2006. P.W.11 handed over the Case Diary to P.W.15 for investigation.
(iii)Taking up the case for investigation, P.W.15, the then Inspector of Police, attached to Tuticorin Central Police Station, proceeded to the place of occurrence at 05.15 a.m. and prepared an Observation Mahazer in presence of P.W.7 and another witness. He prepared a Rough Sketch showing the place of occurrence. Then, he recovered M.O.1 to M.O.16 from the place of occurrence. They are blood stained earth, sample earth, gold dollar, gold ring, gold bracelet, gold chain, key chain dollar, 100 Rupee notes numbering 48, telephone diary, silver arainan, blood stained specks, blue colour pen, one pair of chapels, match box, cigarette box and a cellphone. Then, he conducted inquest on the body of the deceased in the presence of witnesses and forwarded the body for postmortem.
(iv)P.W.13, Dr.Selvamurugan, conducted autopsy on the body of the deceased at 03.30 p.m. on 09.02.2006. He found the following injuries:
?1.A vertical gapping heavy cutting injury of size 15 x 3 cm x cavity depth over back and top of head. It cuts the underlying occipital and left parietal bones and the underlying dura mater.
2.A horizontal gapping heavy cutting injury over upper part of neck measuring 19 x 3 x 7 cms, it cuts the underlying larynx, hyoid bone, esophagus, muscles, arteries, nerves and cervical vertebra.
3.A horizontal gapping heavy cutting injury over upper part of neck measuring 18 x 3 x 6 cms, it lies 2 cm below injury No.2, it cuts the underlying thyroid cartilage, esophagus, muscles, arteries, nerves and cervical vertebra.
4.A horizontal gapping heavy cutting injury over upper part of neck measuring 17 x 3 x 6 cms, it lies 4 cm below injury No.3, it cuts the underlying trachea, esophagus, muscles, arteries, nerves and cervical vertebra.
5.A gapping heavy cutting injury of size 7 x 3 x 2 cm over front of right shoulder, it cuts the underlying muscles and head of right humerus.
6.A slapping cut injury of size 2 x 1 cm over top of right shoulder.
7.A gapping cut injury of size 2 x 1 cm over right thumb.
8.A horizontal stab injury with clear cut margins and sharp edges of size 3 x 1 x 2 cm lies in midline and 23 cms below supra sternal notch.
9.An oblique stab injury of size 5 x 1.5 x 3 cm with clear cut margins and sharp edges over right side of lower abdomen.
OTHER FINDINGS:
External genital : Normal.
Heart : Normal, coronaries ? patent.
Lungs : Normal, c/s pale.
Hyoid bone : found in pieces.
Stomach : contains 50 grams of fruit particles, nil specific smell, mucosa ? pale. Liver, Spleen, Kidneys & Brain : Normal, c/s. Pale. Small intestine : contains 50 ml of mucosal fluid, nil specific smell, mucosa ? pale Bladder : Empty?.
Ex.P.15 is the Postmortem Certificate. He gave opinion that the deceased would appear to have died of shock and haemorrhage due to heavy cut injuries to the neck. He opined that the injuries 2,3 and 4 are fatal. He further opined that the death would have occurred between 12 to 24 hours prior to autopsy.
(v)During the course of investigation, on 22.02.2006, at 04.30 p.m., P.W.15 came to know that the accused 1 to 4 surrendered before the learned Judicial Magistrate at Tuticorin. He took police custody and while under custody, the first accused gave a voluntary confession in the presence of witnesses. In the said confession, he disclosed that he had hidden a car.
The other accused also gave voluntary confessions one after another. In the said confessions, they disclosed the place, where they had hidden the aruvals. On 23.02.2006 at 07.30 a.m., the first accused produced an aruval from a bridge. That was recovered in the presence of P.W.10 and another witness. Similarly, the second accused produced an aruval from the same place. That was recovered under Ex.P.28 mahazer. Then, the third accused produced yet another aruval. That was recovered under Ex.P.29 mahazer. Then, the fourth accused produced an aruval, which was recovered under Ex.P.30, mahazer. Then, a car bearing Registration No.TN-59-7739 was recovered at the instance of the first accused, in the presence of the witnesses. On returning to the Police Station, P.W.15 forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. Then, he handed over the investigation to P.W.16, his successor.
(vi)On 09.03.2006, P.W.16 took up the case for investigation. The fifth accused had surrendered before the Court. He took police custody of the fifth accused on 14.03.2006. While in custody, he gave a voluntary confession in the presence of P.W.10 and another witness. In the said confession, he disclosed the place, where he had hidden the car. But, no discovery of any fact was made out of the said disclosure statement. P.W.16, gave requisition to the learned Judicial Magistrate to conduct identification parade for the accused 2 to 5.
(vii)P.W.14, the then Judicial Magistrate No.I, Tuticorin conducted test identification parade for the accused 2 to 4 on 02.03.2006. In the said test identification parade, P.W.1 and P.W.2 were asked to identify the accused 2 to 4 . However, in the said identification parade, P.W.2 did not participate. P.W.1 identified the accused 2 and 3 in the first instance; he did not identify anybody in the second instance and in the third instance he identified the third accused alone. Then, again on 17.03.2006, she conducted the identification parade for the fifth accused. In the said identification parade, P.W.1 and P.W.2 were asked to identify the fifth accused. In the said identification parade, P.W.1 identified the fifth accused on all the three occasions. But, P.W.2 did not identify him. Ex.P.19 and Ex.P.23 are the Identification Parade Reports of the learned Judicial Magistrate. P.W.16, finally laid charge sheet against all the accused on 31.06.2006.
3.Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of this Judgment. The accused denied the same.
4.In order to prove the case, on the side of the prosecution, as many as, 16 witnesses were examined and 31 documents were exhibited, besides 28 Material Objects.
5.Out of the said witnesses, P.W.1 has stated that he witnessed the entire occurrence. He has stated that after closing his shop in the New Bus Stand at Tuticorin, he came to the shop of the deceased and when the deceased was proceeding towards his car through a lane, all these five accused came and indiscriminately cut him. He has spoken about the complaint made by him also. P.W.2 to P.W.4 and P.W.6 to P.W.8 have turned hostile and they have not stated anything indiscriminating the accused. P.W.5 is the second wife of the deceased. She has only stated about the motive. P.W.9, Police Constable, has stated that he carried the First Information Report from the Police Station and handed over to the learned Judicial Magistrate at 07.00 a.m. on 09.02.2006. P.W.10 is the Village Administrative Officer, in whose presence, the accused gave disclosure statements and he has also spoken about the discovery of material objects at their instance. P.W.11 is the Sub Inspector of Police, who registered the case. She has spoken about the same. P.W.12 is the Head Clerk of the Court, who forwarded the material objects for chemical examination on the orders of the learned Judicial Magistrate. According to the Chemical Analyst Report, human blood was found on all the material objects including the weapons, but the grouping of the blood found on the weapons was inconclusive. P.W.13, Dr.Selvamurugan, has spoken about the postmortem conducted and his final opinion. P.W.14 is the learned Judicial Magistrate, who has spoken about the test identification parades conducted by her. P.W.15 and P.W.16 have spoken about the investigation done.
6.When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. The defence was a total denial. On their side, they did not examine any witness nor did they mark any document on their side.
7.Having considered all the above materials, the Trial Court convicted the appellants, as detailed in the first paragraph of this Judgment, and sentenced them accordingly. That is how, the appellants are before this Court with these Criminal Appeals.
8.We have heard the learned senior counsel appearing for the appellants, the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
9.The learned senior counsel for the appellants would submit that in the instant case, except the evidences of P.W.1 and P.W.2, there is no other evidence available in favour of the prosecution. The learned senior counsel would submit that the presence of P.W.1 is highly doubtful. He would further submit that in the First Information Report, P.W.1 has mentioned only the name of the first accused and not mentioned the names of others, whereas according to his admission all the accused were known to him previously as the accused 3 to 5 are the brothers of the first accused and the second accused is the cousin of the first accused. The learned senior counsel would further submit even in the Court, P.W.1 had not identified the assailants of the deceased. The learned senior counsel would point that during identification parade, he did not identify the accused properly. He would further submit that P.W.1 being a solitary witness, cannot be believed, because, there are lot of doubts in his evidence. Thus, according to the learned senior counsel, the appellants are entitled for acquittal.
10.The learned Additional Public Prosecutor would however oppose this appeal. According to him, it is true that P.W.1 is a solitary witness, since others have turned hostile, But, on that score, according to the learned Additional Public Prosecutor, his evidence cannot be rejected. He has given evidence in a very cogent manner, even speaking about the overtacts of each accused. His evidence is duly corroborated by the medical evidence. There is no delay in the First Information Report creating any doubt. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved its case against all the accused, through the evidence of P.W.1 coupled with medical evidence. The learned Additional Public Prosecutor would further submit that the recoveries of all the weapons at the instance of the accused, would also further lend assurance to the case of the prosecution. Thus, according to the learned Additional Public Prosecutor, the appeal deserves to be dismissed.
11.We have considered the above submissions.
12.Admittedly, the prosecution relied only on the evidence of the solitary witness, namely, P.W.1. It is not the law that the evidence of a solitary witness cannot be acted upon so as to found conviction against the accused. If the evidence of a solitary witness is fully believable, even in the absence of any corroboration from any other independent source acting upon the evidence of the solitary witness, conviction can be founded. Therefore, in this case, the question is as to whether P.W.1 could be believed and based on his evidence alone conviction of these accused can be sustained in the absence of any corroboration. In this regard, we may state that in the earliest document, namely, in the First Information Report, which was given at 12.10 a.m. on 09.02.2006, there is no information about the names of the accused 2 to 5. P.W.1 has stated that four other persons came along with the first accused and attacked the deceased. Thus, according to the First Information Report, the names and other particulars of the assailants, who accompanied the first accused, were not known to him. But, strangely, during cross-examination, P.W.1 has admitted that he knew all these accused 2 to 5 for a long time even prior to the occurrence. Afterall, the accused 3,4 and 5 are the brothers of the first accused and the second accused is the cousin of the first accused. P.W.1 himself is a close relative of the first accused. He knew about the dispute between the two families. Thus, it is crystal clear that the accused 2 to 5 were known to P.W.1 and their names and their father names were also known to him. Had it been true that the accused 2 to 5 had participated in the crime, nothing would have prevented P.W.1 from mentioning the names of the accused 2 to 5 in the First Information Report itself. The doubt arising out of this fact, has not been explained away by the prosecution.
13.Subsequently, the accused 2 to 4 were put up in the test identification parade. In the parade, P.W.1 did not identify these accused on all occasions. At the first instance, he identified two persons, in the second instance, he did not identify anybody and in the third instance he identified the first accused. Thus, he did not identify them during the test identification parade, though, admittedly he knew all these accused prior to the occurrence. It is not explained to the Court as to why P.W.1 did not identify them in the parade. He has identified the fifth accused during the parade which was held subsequently. Thus, there is no explanation as to why P.W.1 was not able to identify these accused in the test identification parade.
14.Now, turning to the evidence, in the Court, P.W.1 has stated that the first cut was made by the first accused on the head of the deceased. Then, two other persons attacked the deceased with weapons followed by two more persons. In the chief examination, he had not identified the accused 2 to 5 as the assailants of the deceased. He has stated that he identified the assailants only during identification parade. The identification made in the test identification parade will have only corroborative value, whereas the identification of the accused made by a witness in Court of law alone is a substantive evidence. Here, in this case, absolutely there is no substantive evidence from P.W.1 in this regard. Therefore, so far as the accused 2 to 5 are concerned, it is crystal clear that the prosecution has failed to prove the entire case and therefore the evidence of P.W.1 needs to be rejected.
15.So far as, the first accused is concerned, it has been established that there was strong enmity between the deceased and the first accused. P.W.1 is the brother of the deceased. Therefore, it is quite natural that P.W.1 had grudges against the first accused. Thus, P.W.1 is an interested person in the case of the prosecution and inimical towards the first accused. The evidence of such a person requires close scrutiny. Now, as we have already held that his evidence is rejected as against the accused 2 to 5, whereas he has implicated all these persons as the assailants. Thus, the evidence of P.W.1 is only partly believable. As per the Judgment of the Hon'ble Supreme Court in AIR 1957 SC 614 (Vadivelu Thevar v. State of Madras), if the evidence of a witness is partly believable, then in the absence of any corroboration from independent witness, solely based on the evidence of such a witness, conviction cannot be founded. Applying this principle to the facts of the present case, in our considered view, it is not safe to sustain the conviction of the first accused also, based on the solitary evidence of P.W.1. Above all, P.W.1 is a chance witness. His chance for being present in the New Bus Stand in Tuticorin at the time of occurrence, itself is highly doubtful. In view of all the above, we find it difficult to sustain the conviction of any of the accused. Regarding discovery of weapons, in our considered view, since weapons have not been identified and since the connection between the weapons and the crime has not been established, the discovery of these weapons at the instance of the accused is of no consequence. Thus, in our considered view, the prosecution has failed to prove the case beyond all reasonable doubts and the appellants are therefore entitled for acquittal.
16.In the result, the Criminal Appeals are allowed; the conviction and sentence imposed on the appellants by the learned Additional and Sessions Judge, Fast Track Court No.II, Tuticorin, made in S.C.No.98 of 2007, dated 11.01.2007, is set aside and the appellant/accused are acquitted of all the charges. The fine amount, if any, paid by them, shall be refunded to them.
To
1.The Additional and Sessions Judge, Fast Track Court No.II, Tuticorin.
2.The Inspector of Police, Central Police Station, Tuticorin District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..