Velu @ Vadivelu vs The State on 31 December, 2003

[Cites 6, Cited by 0]

Madras High Court

Velu @ Vadivelu vs The State on 31 December, 2003

The appeal is directed against the judgment dated 29.9.2000 made in Sessions Case No.147 of 1999 on the file of the I Additional Sessions Court, Dharmapuri at Krishnagiri, whereunder the appellant herein, A1 was tried along with other five accused namely A-2 to A-6 therein. The first accused was charged for the offence punishable under Section 302 I.P.C., as well as for the offences punishable under Sections 147 and 341 I.P.C., and the other accused A-2 to A-6 were charged for the offences punishable under Sections 147, 341, 302 read with 149 I.P.C., in connection with the occurrence said to have taken place at about 6.00 p.m., on 27.12.1994 in Poppyreddy Kattuvalllaivu Village, within the jurisdiction of Thoppur Police Station, Dharmapuri District, for having said to have murdered one Chinnaponnu @ Kullanarian, aged about 60 years, who is the father of P.Ws.1 and 3.

2.1. The case of the prosecution was built up on the statement lodged by P.W.1 at about 4 a.m. on 28.12.1994, marked as Ex.P1. P.W.1 is nonetheless the son of the deceased. Based on the complaint (Ex.P1), a First Information Report (Ex.P10) was registered by the Sub Inspector of Police (P.W.8) at about 4 a.m. on 28.12.1994.

2.2. P.Ws.1 and 3 are brothers, and they are the sons of the deceased. They are living with their parents and sisters at Poppyreddy Kattuvalaivu Village. A6 is the Uncle of P.Ws.1 and 3 whereas A2 is the wife of A6. A1 and A3 to A5 are the sons of A6 and A2. The relationship between the accused and the prosecution witnesses is thus not disputed.

2.3. The story of the prosecution is that about 5 years ago, the deceased objected the accused grazing the cows belonging to P.W.1 and therefore, A1 whipped the deceased, as a result, the deceased lodged a report against A1 and the police enquired into the matter and warned A1 and from then, there was a strained and inimical relationship between the families of the accused and that of the deceased. A1, a week before the date of occurrence viz., 27.12.1994, was threatening the deceased that he would not spare him and ultimately A1 picked up a quarrel with the deceased and attacked him on his chest.

2.4. Following the same, when the deceased and P.W.1 were returning home, after grazing the cows at about 6.00 p.m. on 27.12.1994, A1 to A6 waylaid them and attacked the deceased. On seeing A1 and A5 pushing down the deceased, A2 to A6 attacking the deceased repeatedly with stones, which were marked as M.Os.1 to 6, and A1 throwing a big stone M.O.1 on the head of the deceased, as a result of which the deceased died on the spot instantaneously, P.W.1. rushed to the house of P.W.2, which is about 300 meters away from the place of occurrence and returned with P.W.2 and her son viz., Murugesan to the scene of occurrence and by that time the accused fled away from the place of occurrence. P.Ws.1 and 2 then returned to the house of P.W.2, where P.W.1 stayed for some time and then went to his house and informed his brother P.W.3 about the incident at about 1.00 a.m., on 28.12.1994.

2.5. P.Ws.1 and 3 went to the police station and lodged a report ( Ex.P.1) to the Sub Inspector of Police (P.W.8), who registered the First Information Report (Ex.P.10), based on Ex.P.1. at about 4.00 am on 28.12.1994.

2.6. The FIR (Ex.P10) was forwarded to the Judicial Magistrate No. II, Dharmapuri District, and the same was received by the Magistrate on the same day i.e., on 28.12.1994.

2.7. Pursuant to the F.I.R. (Ex.P10), the investigating officer (P.W.10) undertook the investigation, visited the place of occurrence, prepared an Observation Mahazar (Ex.P2) and also a Rough Sketch (Ex.P1 2), took photographs of the scene of occurrence (Ex.P.11 series), recovered material objects from the scene of occurrence viz., M.Os.1 to 6 - stones, M.O.7 - white towel, M.O.8 - pair of chappal, M.O.9 - 3 sticks, M.O.10 - knife, M.O.11 - blood stained mud, M.O.12 - sample earth under mahazar Ex.P3, in the presence of P.W.4 - Village Administrative Officer and also conducted inquest on the body of the deceased, which is marked as Ex.P.13. After seizing the clothes worn by the deceased, viz., M.O.13 - banian, M.O.14 - dhothi, M.O.15 - loin, M.O.16 - waist cord, the body of the decea sed was sent for post mortem with the requisition marked as Ex.P.4, through P.W.6 - Police Constable, who handed over the body of the deceased to P.W.5, Doctor attached to the Government Hospital, Dharmapuri.

2.8. P.W.5, who conducted post mortem at 2.30 p.m. on 28.12.1994 and found 10 internal injuries as certified in the Post Mortem Certificate (Ex.P.5), opined that the deceased would have died due to the head injuries.

2.9. On the next day viz., on 29.12.1994, the accused were arrested and the material objects were forwarded for chemical analysis through the Court and accordingly, chemical analyst's report (Ex.P.8) and Serologist's report (Ex.P.9) were obtained.

2.10. P.W.9, who succeeded the investigating officer, P.W.10, undertook further investigation and examined P.W.5, the doctor who conducted postmortem and filed the final report on 22.1.1996.

3.1. All the accused, however, denied the charges and hence they were tried in Sessions Case No.147 of 1999 before the learned I Additional Sessions Judge, Dharmapuri at Krishnagiri.

3.2. On behalf of the prosecution, 11 witnesses were examined, of whom, P.W.1 was cited as an eye witness to the occurrence, P.Ws.2 and 3 spoke about the prior enmity between the families of the accused and that of the deceased, P.W.4 is the Village Administrative Officer, who was present at the time of preparation of seizure mahazar marked as Ex.P.3, P.W.5 is the Doctor, who conducted post mortem, P.W.6 is the Head Constable, who handed over the body of the deceased to P.W.5 for post mortem, P.W.8 is the Sub Inspector of Police, who registered FIR, and P.Ws.9 and 10 are the Investigating Officers, through whom documents referred to above were marked as Exs.P1 to P.11 and Material Objects referred to above were produced and marked as M.Os.1 to 16.

4. When all the accused were questioned under Section 313 Cr.P.C., after the trial, they pleaded not guilty. However, the learned I Additional Sessions Judge, Dharmapuri at Krishnagiri, after appreciating the evidence on record, acquitted A2 to A6 under Section 235(1) Cr.P.C. and convicted A1-appellant for the offence punishable under Section 302 I.P.C. and sentenced him to undergo life imprisonment. Hence, the above appeal.

5. Mr.M.G.L.Sankaran, learned counsel for the appellant challenges the conviction of the appellant under Section 302 I.P.C. as well as the sentence imposed on him on the following grounds:-

(i)The case of the prosecution attributing the motive on A1appellant and fixing the crime on A1 is quite unnatural and highly unbelievable, as it mainly relates to the incident said to have taken place five years prior to the date of occurrence and therefore there is no acceptable evidence for the strained and inimical relationship between the families of the accused and the deceased;

(ii) Concededly, P.Ws.2 and 3 were not eye witnesses and P.W.4 was only a mahazar witness and therefore the story of the prosecution is purely based on the evidence of P.W.1, and his testimony is totally unnatural, inasmuch as P.W.1, being the son of the deceased, is not expected to run away from the scene of occurrence when the accused were attacking his father namely the deceased. Moreover, even though the house of the deceased, P.Ws.1 and 3 are within 350 to 500 meters from the scene of occurrence, there is no reason for P.W.1 to go to the house of P.W.2, which is at about 300 to 350 meters from the scene of occurrence to inform about the occurrence, even though P.W.2 was only a neighbour, but not a relative;

(iii)the conduct of P.W.1 leaving the body of the deceased namely his father in the scene of occurrence and going to the house of P.W.2, and staying there for some time and then proceeding to his house to inform P.W.3, is therefore self explanatory to disbelieve his testimony; and

(iv) when his brother P.W.3 is very much available at house, which is about 100 to 150 meters away from the house of P.W.2, the reason for P.W.1 taking nearly 7 hours from the time of occurrence to go to his house to inform P.W.3 about the death of their father, which, in normal course, should have been done within 10 minutes, is again unexplained and hence, eschewing the evidence of P.W.1, there is absolutely no evidence to substantiate the charges.

6. Mr.V.M.R.Rajendran, learned Additional Public Prosecutor, on the other hand, justifies the conviction of A1 and also the punishment imposed on him, as the same is based on the ocular evidence of P.W.1 that M.O.1 was thrown by A-1 on the head of the deceased causing head injury and resulting in instantaneous death, which corroborates with the evidence of P.W.5, the doctor who conducted postmortem and opined that the death was due to the head injury found on the deceased. The learned Additional Public Prosecutor also contends that the evidence of P.W.1 and P.W.5 corroborates with the evidence of P.Ws.2 and 3, who spoke about the prior enmity between the accused and the deceased.

7. We have given a careful consideration to the submissions of both sides.

8. Concededly, P.W.1, aged about 12 years, is the son of the deceased and the occurrence had taken place when P.W.1 and the deceased were returning home after grazing their cattle at about 6.00 p.m. on 27.1 2.1994, when the accused waylaid them and started pushing the deceased down, throwing stones. It is not known, as to how P.W.1 was not injured during the occurrence. If it is suggested that P.W.1 ran away when the accused attacked the deceased, the testimony of P.W.1 that he saw the appellant throwing the big stone (M.O.1) on the head of the deceased cannot be believed and he cannot be cited as an ocular witness. On the other hand, if the story of the prosecution that as per the testimony of P.W.1, he saw the appellant throwing the big stone (M.O.1) on the head of the deceased is accepted, by natural instinct, he should have only protested or proceeded to inform his brother, who was in their house, which is 500 meters away from the place of occurrence and there is no reason why he proceeded to the house of P.W.2, who is not a relative to the deceased and this aspect raises doubt in our minds to question the very credibility of the testimony of P.W.1 .

9. That apart, even after informing P.W.2 and her son Murugesan, none of them proceeded to the house of the deceased to inform P.W.3 until 1.00 a.m. on 28.12.1994, either immediately after the death of the deceased or after returning to the house of P.W.2. Above all, when the distance between the houses of P.W.2 and that of the deceased and P.Ws.1 and 3 is only about 100 to 150 meters, the prosecution has not explained the reason why P.W.1 took seven hours to inform P.W.3 about the occurrence, as highlighted by the learned counsel for the appellant.

10. The conduct of P.W.1 in not protesting against the accused when they were attacking the deceased, as well as running away from the place of occurrence to the house of P.W.2 instead of calling his brother (P.W.3) is quite unnatural, and furthermore, the prosecution failed to prove that M.O.1 contained the fingerprints of the first accused. The story of the prosecution in this regard, in our considered opinion, is improbable, totally fanciful and imaginary.

11. In the absence of cogent and trustworthy eye-witness, circumstantial evidence has to be considered and in which event, every circumstantial evidence relied upon by the prosecution for a safe conviction should have a probative link, strong or weak, but the same must be made out with reasonability and certainty.

12. Of course, the prosecution relies upon the following circumstances as spoken to by P.W.1 viz.

(i) there was a prior enmity between the deceased family and the accused family, as spoken to by P.Ws.2 and 3;

(ii) there was a quarrel between the deceased and the accused a week before the date of occurrence;

(iii) the blood stained clothes worn by A1 and the stone (M.O.1.) thrown on the deceased by A1 also contained human blood stain; and

(iv) the evidence of P.W.5 that the death was caused due to the head injury.

13.1. But, we find that the necessary link is missing in the chain of circumstances, as dealt with hereunder.

13.2. Firstly, there is no satisfactory evidence produced by the Court to establish the motive for the commission of the alleged murder, except the only reason that there was a quarrel between the accused and the deceased while grazing cattle five years ago, which, in our considered opinion is remote to believe.

13.3. Secondly, once the evidence of P.W.1, the foundation to the prosecution case itself is collapsed for want of reliability and credibility, his testimony that M.O.1, which contained human blood, was used for commission of offence also held to be untrustworthy.

13.4. Thirdly, the opinion of the medical evidence P.W.5 that the death would have been caused due to the head injury, even assuming to be accepted, unless the prosecution proves that M.O.1 contains the finger prints of the accused, the opinion of the medical evidence P.W.5 cannot be taken into consideration to bring home the guilt of the accused.

14. Hence, holding that the prosecution has failed to prove its case, either through the ocular evidence or through circumstantial evidence, beyond all reasonable doubt, we are inclined to allow the appeal, set aside the order of conviction and sentence dated 29.9.2000 in S.C.No.147 of 1999 of the learned I Additional District and Sessions Judge, Dharmapuri at Krishnagiri, with a direction to the respondent to release the accused forthwith, unless and otherwise he is required in connection with any other case. No costs.

Index   :       Yes
Internet        :       Yes

atr/kpl/sasi/kst

To:

1.  The I Additional District &
Sessions Judge, Dharmapuri
at Krishnagiri.
2.  The State,
rep.  by its Inspector of Police,
Thoppur Police Circle,
Dharmapuri District.
3.  The Public Prosecutor
High Court, Chennai.

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