Madras High Court
Jeyabharathi vs State Rep. By on 26 March, 2007
Author: M.Chockalingam
Bench: M. Chockalingam, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/03/2007 CORAM : THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Crl.A.(MD) No.1 of 2004 Jeyabharathi ... Appellant -Vs- State rep. by Inspector of Police, Allinagaram Police Station, Theni. .. Respondent Appeal filed against the conviction and sentence passed by the Additional District and Sessions Judge, Periyakulam in s.C.No.530 of 2003 dated 6.7.2004. For Appellant :Mr.Gopalakrishna Lakshmana Raju For Respondent :Mr.P.N.Pandidurai Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) The sole accused who faced trial before the Additional District and Sessions Judge, Periyakulam, in S.C.No.530/2003, on being found guilty as per the charge of murder under Section 302 IPC and awarded life imprisonment along with fine and default sentence, has brought this appeal before this Court.
2.The short facts necessary for the disposal of this appeal can be stated thus:
(a)The deceased Prithviraj was employed in Theni Municipality. His marriage with one Prema, the sister of the accused took place and as a result, they got a female child. Seven months prior to the occurrence, due to strained relationship, the marriage bond was broken and there was a procedural divorce. The deceased Prithviraj went for a second marriage.
The accused was aggrieved over the same and that he was often adumbrating that the deceased would face dire consequence. A few days prior to the date of occurrence, the accused went to the house of P.W.1, father of the deceased, and informed that he would finish off his son and with that intimidation, he went away. On the date of occurrence, i.e., 29.5.2003, the deceased went over to attend a function at E.S.Mahal. Since the deceased did not return home till 10.00 p.m., entertaining fear over his mind, P.W.1 accompanied by P.W.2, went over to E.S.Mahal. P.W.3 was also present at that time. When the deceased was going in front of E.S.Mahal, the accused suddenly appeared and threw chilli powder on the face of the deceased and stabbed him on the left abdomen and immediately, the accused went away from the place of occurrence. P.Ws.1 to 3 and others took the deceased in an auto to Theni Government Hospital where P.W.7, the doctor attached to the said hospital admitted the deceased and medically examined him. The statement given by the deceased was recorded by P.W.7, the doctor, and the Accident Register copy is marked as Ex.P.6. Within a short span of time, the deceased died and P.W.7, the doctor, declared him dead. Immediately, P.W.1 proceeded to Theni Police Station where P.W.11, the Sub Inspector of Police, was on duty on the day of occurrence. P.W.1 gave a complaint which is marked as Ex.P.1, on the strength of which a case came to be registered in Crime No.115/2003 under Section 302 IPC. The F.I.R. which was marked as Ex.P.13, was sent to the Court. On receipt of the copy of F.I.R., P.W.13, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made inspection in the presence of witnesses and prepared Ex.P.3-the Observation Mahazar and Ex.P.15-the rough sketch. He sent requisition for taking photographs. P.W.11, the Sub Inspector of Police, conducted Inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P.14-the Inquest Report.
(b)Following the Inquest, the dead body was sent for postmortem along with a requisition. P.W.7, the doctor, attached to Theni Government Hospital, conducted autopsy on the dead body and has opined in Ex.P.7, the postmortem certificate, that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by him.
(c)Pending investigation, the Investigating Officer arrested the accused and he came forward to give a confessional statement and the same was recorded in the presence of witnesses, the admissible part of which is marked as Ex.P.4. Pursuant to the confessional statement, the accused produced M.O.1, the knife, under a cover of Mahazar. The accused was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body, and also the knife, M.O.1, produced by the accused, were subjected to chemical analysis by the Forensic Sciences Department pursuant to a requisition forwarded by the Sub Inspector through the concerned Court which resulted in two reports, viz., the Chemical Analyst's Report-Ex.P.11 and the Serologist's Report-Ex.P.12 respectively. On completion of the investigation, the investigating officer filed the final report.
3.The case was committed to Court of Sessions. Necessary charge was framed. In order to substantiate its case, the prosecution marched 14 witnesses and also relied upon 15 exhibits and 7 material objects.
4.On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. No defence witness was examined. But, the accused relied on three material objects, which were the photographs.
5.On completion of evidence on both sides, the Trial Court heard the arguments advanced on either side, made thorough scrutiny of the available materials, took the view that the prosecution has proved its case beyond reasonable doubt, found the accused guilty as per the charge and awarded life imprisonment, which is the subject matter of challenge before this Court in this appeal.
6.Advancing his arguments on behalf of the appellant/accused, Mr.Gopalakrishna Lakshmana Raju, learned Counsel inter-alia made the following submissions:
(a)In the instant case, the prosecution rested its case on the evidence of P.Ws.1 to 3 as eye witnesses and that these three witnesses examined by the prosecution could not have seen the occurrence at all.
Insofar as P.Ws.1 and 2, they are closely related to the deceased and hence, their evidence has got to be scrutinised with great care and caution. According to them, the occurrence has taken place in front of E.S.Mahal and according to P.W.1, just two days prior to the occurrence, the accused came to the house of P.W.1 and threatened him that he would finish off his son. On the day of occurrence, the deceased went over to SFI function and he did not return back home for a long time. So, P.W.1 accompanied by P.W.2 went over to search of him. When they came in front of E.S.Mahal, they witnessed the occurrence.
(b)It is pertinent to point out from the evidence of P.W.3 that SFI function took place at Senai Thalaivar Kalyana Mandapam and not in E.S.Mahal. If it be so, P.W.1 could not have gone to E.S.Mahal in search of the deceased. Apart from that, from the evidence available, it would be quite clear that SFI function did not take place at E.S.Mahal at all. Had it been so, the deceased who was a functionary in SFI had no occasion to go to E.S.Mahal that day.
(c)Added further, the learned counsel that if the occurrence, as put forth by the prosecution had taken place at about 10.15 p.m. in front of E.S.Mahal and P.Ws.1 and 2 have also witnessed the occurrence, they should have taken the seriously injured deceased to the hospital. But, it is pertinent to point out that P.W.7, the doctor, has medically examined the deceased and recorded his statement under Ex.P.6, the Accident Register. When it is perused, it would be quite clear that the injured was taken to the hospital and admitted by one Rama Moorthy, President of Tamil Nadu Government Employees Association Theni District. Had it been true that P.Ws.1 and 2 have accompanied the deceased from the place of occurrence, there was no impediment for them to admit the deceased. But, instead, one Rama Moorty has admitted the deceased. This would indicate the fact that P.Ws.1 and 2 have neither seen the occurrence nor admitted the deceased in the hospital.
(d)According to the auto driver, eight persons have accompanied the deceased. It is pertinent to point out that P.W.7, the doctor, who medically examined the seriously injured, has deposed that the deceased was semi conscious and that the deceased narrated that he was attacked at 10.15 p.m. in front of E.S.Mahal when he was walking in front of E.S.Mahal with a knife by an unknown person and the statement of the deceased was recorded by P.W.7, the doctor. If the doctor's evidence has got to be taken into account that the deceased was attacked by an unknown person and that was the statement given by the deceased, then P.Ws.1 and 2 could not have been in the place of occurrence at all and thus, it would be indicative of the fact that P.Ws.1 and 2 after coming to know about the incident, rushed to the hospital, then P.W.1 went to the Police Station and has given the complaint, Ex.P.1. All would go to show that the evidence of P.Ws.1 and 2 cannot be believed at all.
(e)Insofar as P.W.3, P.W.3 has categorically pointed out that SFI function took place only in Senai Thalaivar Kalyana Mandapam and not in E.S.Mahal. Apart from this, though P.W.3 claimed that he knew the name of the accused as Jeyabharathi and the father's name of the accused at the time of occurrence, but, a perusal of the statement given by P.W.3 to the investigator would reveal that he came to know about the names of the accused and the father of the accused thereafter. It would be quite clear that he had no knowledge about the accused at the time of occurrence at all. If he had no knowledge about the accused previously, an Identification Parade should have been conducted. But, it had not been done so. Hence, the evidence of P.W.3 was not useful in any way to the prosecution case. Under such circumstance, the prosecution has not proved its case beyond reasonable doubt. The learned counsel for the appellant submitted that the appellant/accused is entitled for acquittal in the hands of this Court, which was failed to be done by the trial Court.
7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and made a thorough scrutiny of the materials available.
8.In the instant case, it is not a fact in controversy that the deceased Prithviraj, the son of P.W.1, following an incident that took place at about 10.15 p.m. on 29.5.2003, was taken to Theni Government Hospital where he was medically examined when he was semi conscious and was declared dead by P.W.7, the doctor, attached to the said hospital. Following the inquest conducted by the Investigating Officer, P.W.13, the Inspector of Police, the dead body was subjected to postmortem. P.W.7, the doctor, attached to the said hospital conducted the postmortem and opined in Ex.P.7, the postmortem certificate, that the deceased would appear to have died out of shock and haemorrhage due to injuries sustained by him. The fact that the deceased died out of homicidal violence was never questioned by the accused at any stage of the proceeding and hence, without any impediment it can be factually recorded so.
9.In order to substantiate that it was the accused who stabbed the deceased to death, the prosecution has relied on direct evidence by marching three witnesses. Out of these three witnesses, P.Ws.1 and 2 are closely related to the deceased and P.W.3 is the member of DYFI and the deceased was the Vice President of Tamil Nadu Government Employees Association, Theni District. If the evidence of three witnesses, carefully scrutinised, this Court is afraid whether it can accept the evidence to sustain conviction according to the charge levelled against the accused.
10.The occurrence has taken place in front of E.S.Mahal and it was the accused who stabbed the deceased with knife in abdomen and it was witnessed by P.Ws.1 to 3. Insofar as P.Ws.1, they have claimed that they were actually in the place of occurrence. It is the admitted case of the prosecution that immediately after the occurrence the accused fled away from the place of occurrence and the deceased was taken in an auto directly to the hospital where P.W.7, the doctor, was on duty in Theni Government Hospital, on the date of occurrence. On perusal of the Accident Register, Ex.P.6, given by P.W.7, the doctor, it would be quite clear that severely injured Prithviraj was admitted by one Rama Moorthy, President of Tamil Nadu Government Employees Association, Theni District, and the deceased was admitted neither by P.W.1 nor by P.W.2. Had it been true that P.Ws.1 and 2 were present at the time of occurrence, one would naturally expect them to accompany the deceased and admit him in the hospital. But, they have not done so. Apart from this, one strong circumstance against the prosecution is the statement made by the deceased himself to the doctor, P.W.7, who categorically admitted that the deceased at the time of admission was semi- conscious and it was the deceased who made the statement that he was stabbed by an unknown person with a knife at 10.15 p.m. in front of E.S.Mahal and the same is also recorded in the Accident Register, Ex.P.6. If such statement was made by the deceased himself to the doctor, P.W.7 and is recorded in Accident Register, Ex.P.6, and the person who actually stabbed the deceased is an unknown person, at this juncture, the statement made by the deceased would reveal two things-firstly, P.Ws.1 and 2 could not have been eye witnesses to the occurrence at all and secondly, it is also doubtful whether it was the accused who committed the offence. Therefore, P.Ws.1 and 2's evidence, when viewed from the statement given by the deceased to the doctor, P.W.7, their presence at the time of occurrence is highly doubtful and cannot be believed at all.
11.Apart from this, there were intervening two hours time from the examination of the deceased by the doctor and the report given to P.W.13, the Inspector of Police. It would be inferable that P.W.1, on the intimidation made by the accused a few days back, should have given the information to the police that it was the accused who stabbed the deceased. Insofar as the evidence of P.W.3, his evidence does not require consideration at all for the simple reason that he made development in his statement before the Court that he knew the names of the accused and the father of the accused. But, according to the Investigating Officer, P.W.3 came to know about the names of the accused and the father of the accused only on enquiry. Hence, it would be quite clear that at the time of occurrence, P.W.3 did not know the names of the accused and the father of the accused. Under such circumstance, P.W.3's evidence does not help the prosecution case.
12.Yet another circumstance added by the prosecution was the recovery of M.O.1, the knife. Learned counsel placing reliance on a publication in a newspaper, would submit that the accused was actually arrested by the constables attached to Thidir Nagar Police Station, Madurai and the Constables were also awarded. The case records in respect of arrest of the accused are fabricated to suit the prosecution case and it also casts doubt on the prosecution case. Hence, in the opinion of the Court, since the evidence of all these three eye witnesses lose its credence and there was suspicion attendant over their evidence, it is unsafe to sustain the conviction basing on their evidence. Therefore, the accused is entitled for acquittal.
13.In the result, the appeal is allowed. The Judgment of conviction and sentence imposed by the Trial Court in S.C.No.530/2003 on the appellant/sole accused is M.CHOCKALINGAM, J.
AND P.R.SHIVAKUMAR, J.
ap set aside and the appellant is acquitted of the charge levelled against him. The appellant is directed to be set at liberty forth with unless he is required in connection with any other case. The fine amount, if any paid, shall be refunded to the accused.
To
1. The Additional District and Sessions Judge, Periyakulam.
2. The Principal Sessions Judge, Periyakulam.
3. The Inspector of Police, Allinagaram Police Station, Theni.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.