Madras High Court
Valu @ Subramani vs State Rep. By on 12 February, 2016
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2016 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN Criminal Appeal No.753 of 2012 1. Valu @ Subramani 2. Indra @ Indrani .. Appellants Vs State rep. By Inspector of Police, Padalur Police Station, Perambalur District. (Crime No.84/2011) .. Respondent Criminal Appeal filed under Section 374(2) Cr.P.C., against the Judgment of conviction and sentence imposed by the learned Sessions Judge, Mahila Court, Perambalur, in S.C.No.5 of 2012 dated 31.0.2012. For Appellants : Mr.A.Sirajudeen For Respondent : Mr.M.Maharaja, Additional Public Prosecutor JUDGEMENT
(Judgment of the Court was delivered by S.Vaidyanathan,J) There are two accused in this case. The appellants are accused A1 and A2 in S.C.No.5 of 2012 on the file of the learned Sessions Judge, Mahila Court, Perambalur. They stood charged for offences under Sections 341 and 302 read with 34 IPC. By judgment dated 31.07.2012, the trial Court convicted both the accused for offences under Sections 341 and 302 read with 34 IPC. For the offence under Section 341 IPC, the trial Court directed each of them to pay a sum of Rs.500/- towards fine, in default to undergo simple imprisonment for one month and for the offence under Section 302 r/w 34 IPC, the trial Court sentenced them to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default to undergo 2 years Simple Imprisonment. Challenging the said conviction and sentence, the accused/appellants are before this Court with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:
(i) The deceased in this case is one Chellapappu, wife of the 1st accused. The 1st accused and the deceased got married 30 years prior to the date of the incident and out of the said lawful wedlock, they have three daughters and a son. Eight years back, the 1st accused developed illegal intimacy with the 2nd accused, who is the wife of one Anbalagan. A1 was leading an adulterous life, after separating the 2nd accused from her husband and they have got one female child by name Akila. Vellala Gounder, father of A1 did not like the immoral life A1 had with A2 and in order to help his daughter in law, viz., the deceased, who was deserted by A1, he allotted four acres of land and a house in favour of his grand son Manikandan and the 1st appellant (A1) was allotted one acre land and a house. The deceased and her children were living in the house allotted by her father-in-law and eked out their livelihood by cultivating the lands allotted to Manikandan. The complainant, one Subramanian, brother of the deceased, supported the deceased and her children and helped his sister in performing marriages of her two daughters. As the 1st appellant (A1) did not like the property arrangement made by his father, enmity arose between him and the deceased as also with the brother of the deceased (P.W.1.), who is an eye-witness to this case.
(ii) On 04.04.2011, the deceased, her daughter (P.W.2), her brother Subramani (P.W.1), his wife Vennila (P.W.3), along with other workers were harvesting groundnuts in the field of the deceased. About 03.30p.m., the 1st appellant/A1 along with the 2nd appellant/A2 came to the spot and shouted at the deceased and stated that nobody should work in his land and asked them to leave the place. In reply, the deceased told him that when her father-in-law had already allotted separate lands in his favour, there is no need for him to disturb her. Thereafter, the 1st accused abused her and took Kuthubala Kathi, which was hidden inside his hip and tried to stab her. On seeing the same, sensing danger, she ran towards the land belonging to one Murugan and the accused chased her with an intention to cause murder, intercepted her, pulled her hair and pushed her down. When the deceased fell down, A1 stabbed her with Kuthupala Kathi repeatedly on her left side abdomen, left side ribs, right shoulder, chest (left side), left back and left ankle joint and inflicted injuries. The 2nd accused gave a blow on her left side head with the weapon Kalaikothi and inflicted injuries. The deceased sustained serious injuries and died on the spot. A1 and A2 fled away from the scene of occurrence with weapons.
(iii) P.W.1, Subramani, brother of the deceased lodged a complaint on 04.04.2011 at 18.00 hours under Ex.P.1 before Padalur Police Station and FIR under Ex.P.12 was registered in Cr.No.84/2011 under Section 302 IPC by the Special Sub-Inspector of Police, P.W.16, who forwarded the same to the Inspector of Police, P.W.18. After receipt of the copy of the FIR, the Investigating Officer P.W.18, visited the scene of occurrence at 19.45 hours and prepared Observation Mahazaar Ex.P.2 and Rough Sketch Ex.P.13 before the witnesses P.W.10 and P.W.11. He seized blood stained earth (MO3), ordinary earth (MO4) before the same witnesses in Ex.P.3-Mahazar. He had directed P.W.17, photographer to photograph the dead body and the Photos were marked as M.O.9 series and the Negatives were marked as M.O.10 series. Thereafter, he conducted inquest on the body of the deceased, in the presence of the Panchayatdars and other witnesses and forwarded the same for Post-mortem. Ex.P.14 is the inquest report. He also examined P.Ws.1 to 11 and recorded their statements.
(iv) P.W.13, Dr.Vishnupratap, attached to Perambalur Government Head Quarters conducted autopsy on the body of the deceased on 05.04.2011 at 10.00 a.m. and found the following injuries on the body of the deceased:
"Injuries:
(i) A stab injury over (Lt) elbow 2 1/2 x 1 x1 cm.,
(ii) A stab injury over (Lt) side abdomen 1.5 x 0.5 x 1cm
(iii) A stab injury over (Lt) lower chest 3 x 1 x 3 cm
(iv) A lacerated injury over (Lt) frontile region 4.5 x 0.5 x bd
(v) A stab injury over (Rt) back side of shoulder 2 x 1 x2 cm
(vi) Another stab injury over (Rt) back side of shoulder 2.5 x 1 x 1 cm
(vii) A stab injury over (Lt) breast 0.5 cm x 0.9 x 0.5 cm
(viii) A stab injury over (Rt) shoulder 2.0 x 0.5 x 0.5 cm
(ix) A stab injury over back of chest below the ankle of (Rt) scapula 2 x 1 x 2.5 cm"
(v) Ex.P.8 is the Post-mortem certificate. P.W.13- Dr.G.Vishnupratap opined that the deceased would have died due to shock and hameorrage and due to the injury in Lung Right liver lobe, spleenic vein and stomach.
(vi) During the course of investigation, at 12.30 p.m., both A1 and A2 were arrested at Mandaveli by P.W.18 Inspector of Police, before the witnesses Mani (P.W.12) and one Natesan. On such arrest, A1 made a voluntary confession statement before the same witnesses, the admitted portion of which was marked as Ex.P.4. Thereafter, A2 voluntarily gave confession statement before the same witnesses, the admitted portion of which was marked as Ex.P.5. In pursuance of the same, about 15.30 hours, both A1 and A2 took the police and the witnesses to the field belonging to the 1st accused and produced the weapons used for the crime. The 1st accused produced Kuthubala Kathi (MO1), which was hidden inside the firewood shed. The 2nd accused produced Kalaikothi, which was hidden beneath the thorn fence. Both were recovered under recovery Mahazaar vide Exs.P6 and P7 before the same witnesses.
(vii) On returning to the police station, the Investigating Officer forwarded both the accused to the jurisdictional Court for judicial remand and handed over the material objects also to the Court. Thereafter, he had examined Natesan and Mani (P.W.12) and recorded their statements. On 03.06.2011, the Investigating Officer examined Dr.Vishnupratap and recorded his statement. He also examined the Photographer (P.W.17), Head Constable - Shanmugam (P.W.14), Murugadoss (P.W.15) and recorded their statements. On completing investigation, finally, he laid charge sheet against the accused under Sections 341 and 302 r/w 34 IPC.
(viii) Based on the above materials, the trial Court framed the charges as detailed in the first paragraph of the Judgment.
(ix) In order to prove the case of the prosecution, on the side of the prosecution, as many as 18 witnesses were examined and 15 documents were exhibited, besides 10 material objects.
(x) On the side of the accused, two documents viz., Ex.D.1, xerox copy of O.P. Sheet, A.R.copies and other connected medical records and Ex.D.2, FIR and connected records in Cr.No.85 of 2011 of Padalur Police station, were marked. The defence of the accused is one of total denial.
(xi) Having considered all the above, the trial Court convicted both the accused as stated in the first paragraph of the Judgment. That is how, the accused are before this Court with this appeal.
3. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State and carefully perused the records.
4. In this case, P.W.1 is the complainant, who is none other than the brother of the deceased. P.W.2 is the daughter of the deceased. P.W.3 is the wife of P.W.1. P.Ws.4 to 8 are Villagers and independent witnesses. P.W.10 and P.W.11 are Mahazaar Witnesses. P.W.12 is the witness before whom the deceased were arrested and weapons were recovered. P.W.13 is the Doctor who had spoken about the injuries.
5. The weapon used by the accused was not properly identified by the witnesses. Some of the witnesses stated that it was Kuthubala Kathi whereas some other witnesses stated that it resembled an Eeti and the same is fatal to the prosecution. As per the prosecution, the weapon used by A1 for the occurrence is an sharp edged iron weapon at one end (like a spear). Whereas, the witnesses have clearly stated that in their village, the above weapon is identified as Kuthubala Kathi, but, the police recorded the same as Eeti, and thus there is a small variation in describing the weapon. The prosecution has not placed any evidence to show that the motive of the accused was to murder the deceased.
6. The learned counsel for the appellants submitted that though it is the case of the prosecution that the father of A1 settled major extent of his lands in favour of his grandson and only a minimum portion of lands was settled in favour of A1 and therefore, enraged over the same A1 caused the murder of the deceased, neither the grandson Manikandan, who is the real beneficiary of the maximum extent of lands or Vellala Gounder, father of A1 being the owner of the lands have been cited as witnesses. Had there been a land dispute really, A1 would have committed murder on his son Manikandan or his father and not his wife. Though Vella Gounder was not cited as witness, the same will not create any dent in the prosecution case. As far as non-examination of Vellala Gounder is concerned, the trial Court has correctly held that though he was not cited as witness, the same will not create any dent in the prosecution case and Manikandan, being a student was not available at the time of occurrence.
7. The learned counsel for the appellants would further submit that the prosecution relied upon the case based on eye-witnesses. P.Ws 1 to 3, who are interested witnesses will naturally adduce false evidence against the accused. Also, P.W.s 4 to 7, who are workers in the field, that too age-old women supported the prosecution case, as they are workers of the deceased. Had the occurrence took place in a different location, P.Ws.4 to 7 would not have witnessed it. Even in the absence of motive, the guilt of the culprit can be established, if the other evidence on record are trustworthy. As far as this contention is concerned, the trial Court is correct in holding that the evidence of P.Ws. 4 to 7 are clear, cogent, unambiguous and unimpeachable and consistent and corroborative with each other and also corroborative with the evidence of P.Ws.1 to 3 and 8.
8. That apart, according to the learned counsel for the appellants, the injuries found in the inquest report and the Doctor's post mortem certificates differs. As per the inquest report, only six injuries were found, whereas as per the post-mortem report, there were nine injuries. But, no question has been raised before the Doctor, who conducted post-mortem.
9. That apart, according to the learned counsel for the appellants on considering the evidence, the trial court has erred in coming to the conclusion that the defence has not established their plea of private defence. D.W.1, Dr. Chitrakala, who treated A2 in Trichy Jail had deposed that the injuries sustained by A2 is a sutured wound in her forehead and that while treating her, D.W.1 informed that she was attacked by three persons with a spade. D.W.2, Dr.Saravanan, who treated A1 on 04.04.2011 around 5.30 p.m., stating that A1 informed him that he was attacked by four persons with a spade. It is his further evidence that he treated A1 from 4.4.2011 to 6.4.2011 and the injuries sustained by him are lacerated wound on the parietal region for 5 x 0.3 cm lacerated wound for 3 x 0.1 cm over occipital region. D.W.3, who is Head Clerk of Judicial Magistrate deposed that both Cr.Nos.84 and 85 of 2011 are co-related. According to the learned counsel, the accused are innocents and they were not involved in the crime and it was the deceased who had attacked both the accused and in the scuffle when both the accused tried to save themselves from the clutches of the deceased in the right of private defence, the deceased herself sustained self- inflicted injuries and died.
10. According to the learned counsel for the appellants, pursuant to a wordy quarrel with the accused, the deceased suddenly took a spade and chased them and when they tried to escape, the deceased hit A1 on his head and when A2 tried to save A1, the deceased also hit A2 on her head and forehead. In the result, both were injured. Thereafter, a complaint was preferred on their side and FIR was also registered in Cr.No.85 of 2011, which was totally suppressed by the investigating officer. It is the case of the prosecution that the said case was closed as mistake of fact after due enquiry and no weapon was seized. However, the said FIR was not produced before the Court by the Investigating officer.
11. As there was a clash between the accused and the deceased, the deceased could have attacked the accused and ran away from the place of incident, which could have instigated the accused to chase the deceased and cause injuries, not with an intention to cause murder. As regards the case in counter, the trial Court has erred in coming to the conclusion that Cr.No.85 of 2011 is nothing but an after-thought and a make-believe story. It is difficult to sustain the conviction imposed on the accused for the simple reason that, in the very same occurrence, both the accused had sustained injuries, but, no explanation whatsoever has been offered by the prosecution witnesses. Even the Investigating Officer had not collected any evidence to explain the injuries sustained by the accused. He did not even bother to speak about the injuries sustained and the counter case registered, instead, he admitted about the registration of counter case only during cross-examination. In the final report, he has stated that the accused sustained injuries in the scuffle, but no witness has stated that there was such a scuffle. Thus, the injuries sustained by the accused remains unexplained.
12. In an identical situation, the Apex Court in the case of Lakshmi Singh and others vs. State of Bihar reported in (1976) 4 SCC 394, has held as follows:
"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
13. Applying the said principle to the facts of the case, since the prosecution witnesses have suppressed an important part of the occurrence by declining to explain the injuries sustained by the accused and have not come forward with the true version, the accused are entitled for acquittal. Accordingly, we hold that the prosecution has failed to prove the case beyond reasonable doubt and therefore, the appellants herein are entitled for acquittal.
14. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the accused 1 and 2/appellants by the learned Sessions Judge, Mahila Court, Perambalur in S.C.No.5 of 2012, dated 31.07.2012 are set aside and the accused 1 and 2/appellants are acquitted. Fine amount, if any paid, shall be refunded to them. Bail bond, if any, executed by the accused 1 and 2/appellants, shall stand discharged.
(S.N.J.,) (S.V.N.J.,)
12.02.2016
rg/aeb
To:
1. The Sessions Judge, Mahila Court,
Perambalur.
2. The Public Prosecutor,
High Court, Madras.
S.NAGAMUTHU,J
and
S.VAIDYANATHAN,J
rg/aeb
Judgment in
Crl.A.No.753 of 2012
Dated: 12.02.2016
http://www.judis.nic.in