Madras High Court
Subramanian vs State Rep. By The on 5 March, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL (MD)NO.629 OF 2000 1.Subramanian 2.Rajaram .. Appellants Vs. State rep. by the Inspector of Police, Ezhayirampannai Police Station, Virudhunagar District. (Crime No.96/98) .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C. against the judgment of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur made in S.C.No.103 of 1999, dated 5.7.2000. !For Appellants ... Mr.K.Abudukumar Rajarathinam ^For Respondent ... Mr.P.N.Pandithurai, APP :JUDGMENT
(The judgment of the Court was delivered by M.CHOCKALINGAM, J.) A challenge is made to the judgment of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur made in S.C.No.103 of 1999, whereby these two appellants stood charged, tried and found guilty as follows:
Accused Charges Findings Sentences A-1 and A-2 S.341 IPC Guilty One month S.I each A-1 S.302 IPC Guilty Life Imprisonment A-2 S.302 r/w S.34 IPC Guilty Life Imprisonment
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the wife of the deceased Muthuraj. The first accused is the father of the second accused. The first accused and the deceased had strained relationship, since the deceased purchased an immovable property from P.W.7.
Earlier, the first accused was attempting to purchase the same, but he failed. A few Cows of the first accused died earlier and hence the first accused entertained suspicion that it was due to the act of the deceased. Four months prior to the date of occurrence, when one Subburaj was ploughing the land of the deceased, P.Ws.1 and 2 were present and at that time, A-2 came there with aruval and attempted to attack the deceased. Since the said Subburaj intervened, the second accused left the place. Thus, for all these reasons, both the accused were on inimical terms with the deceased.
b)On the date of occurrence, namely on 18.09.1998 in the morning hours, accompanied by her husband, P.W.1 went to the Bank at Sankarapandiapuram, where P.W.6 was employed as Assistant. They had originally pledged their gold jewels and thus, they have to pay the interest thereon. On that day, since the Bank was on strike, they came back on their way. Further, they proceeded to Ezhayirampannai and purchased cement and groceries. They were returning on the way to their native place. When they were nearing the land of one Madasamy, A- 2 came in a TVS 50, in which A-1 armed with a wooden log was sitting as a pillion rider. They were crossing P.W.1 and the deceased. Immediately, they waylaid the deceased and A-1 attacked the deceased with wooden log on his head and on different parts of his body. The deceased fell down and died. This occurrence was witnessed by P.Ws.1 to 4. Immediately, both the accused fled away from the place of occurrence.
c)P.W.1 proceeded to the respondent police station at 2.00 p.m., where P.W.15, the Head Constable was on duty. On the strength of Ex.P.1, the complaint given by P.W.1, a case came to be registered in Crime No.96 of 1998 under Sections 341 and 302 IPC. Ex.P.12, the F.I.R. was despatched to the Court.
d)P.W.17, the Inspector of Police of Alangulam, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot, made an inspection in the presence of the witnesses and prepared Ex.P.3, the Observation mahazar and Ex.P.19, the rough sketch. Photographs were caused to be taken and M.O.8 is the photos and negatives and M.O.9 is also the photos and negatives. P.W.17 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.20, the inquest report. He also recovered the material objects from the place of occurrence under a cover of mahazar. The dead body was sent to the Government Hospital, Sattur for the purpose of post-mortem.
e)P.W.10, the Doctor attached to the Government Hospital, Sattur, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.11, the post-mortem certificate, wherein he has opined that the deceased died due to asphyxia.
f)Pending investigation, P.W.17, the Investigator arrested both the accused on 19.09.1998. A-1 voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.21. Pursuant to the same, he produced M.O.1, TVS-50, which was recovered under a cover of mahazar. Both the accused were sent for judicial remand. Further, the witnesses were examined and their statements were recorded. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were sent for chemical analysis by the Forensic Science Department, which resulted in two reports. Ex.P.9 is the Chemical Analyst's report and Ex.P.10 is the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and relied on 22 exhibits and 12 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced, took the view that the prosecution has proved the case beyond reasonable doubt and has rendered a judgment of conviction and sentence. Hence, this criminal appeal has arisen at the instance of the appellants.
4.Advancing arguments on behalf of the appellants, the learned counsel, inter-alia, has made the following submissions, as prime points:
a)The prosecution, in order to prove the said charges, examined P.Ws.1 to 3, as eyewitnesses. Out of those witnesses, P.Ws.2 and 3 turned hostile. Now, the only evidence available for the prosecution was that of P.W.1. According to P.W.1, she accompanied her husband to the bank at Sankarapandiapuram for making payment of interest in respect of the jewel loan already availed by them. As per Ex.P.1, the earliest document, they paid interest in the Bank. At the time of evidence, she has developed in such a way that on that day, the Bank was on leave and hence they could not make payment of interest. From the enquiry, it would reveal that the Bank was on strike on 18.09.1998 and hence interest could not be paid. From the averments found in Ex.P.1, it could be seen that she paid interest on 18.09.1998. Thus, it would be quite clear that she could not have accompanied her husband on that day at all.
b)Secondly, according to P.W.1, her husband was attacked with wooden log on his head and legs by A-1, but no corresponding injuries are found in the post-mortem certificate. According to the post-mortem Doctor, number of blisters were found and the skin was also found peeled and under these circumstances, such injuries could have been caused only by pouring hot water or any acid. In the instant case, the prosecution has come with a specific case that the injuries were caused by A-1 using the wooden log, but if the wooden log was actually used by A-1 at the time of occurrence, as stated by P.W.1, corresponding injuries would have been found. Thus, it would be quite clear that the evidence of P.W.1, as if she was present and witnessed the occurrence, was belied by the medical evidence.
c)Thirdly, in the instant case, according to the prosecution, the occurrence has taken place at about 1.00 p.m. The case was registered at 2.00 p.m. After the inquest, the dead body was handed over by P.W.17, the Investigator to one Irulandi, the Constable, who took the dead body to the Government Hospital, Sattur at 5.00 p.m., where the dead body was subjected to post-mortem by P.W.10, the Doctor. A perusal of the post-mortem certificate would clearly reveal that the requisition for post-mortem was received by the Government Hospital at 13.00 hours. This would go to show that the dead body along with the requisition was received by the Government Hospital at about 1.00 p.m. But, according to the prosecution, the occurrence has taken place at about 1.00 p.m. and a case was registered at 2.00 p.m. From the receipt of the requisition by the Government Hospital at about 13.00 hours would clearly indicate that the occurrence would have taken place very earlier and then, the dead body was also despatched to the Government Hospital for post-mortem. The facts that the case was registered at 2.00 p.m. and the inquest was conducted by the Investigator between 2.00 p.m. and 5.00 p.m., would go to show that the occurrence could not have taken place, as put forth by the prosecution and P.W.1 could not have seen the occurrence at all. Further, all the above would clearly indicate that the prosecution has not proved the case in any manner known to law. The lower court has erroneously found both the accused/appellants guilty and hence they are entitled for acquittal in the hands of this court.
5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
6.After doing so, the court is of the considered opinion that the court has no option than to set aside the judgment of the court below for more reasons. The prosecution was successful enough to an extent that the husband of P.W.1 was done to death in an incident, in which he was attacked and he met his death by homicidal violence. This fact was proved through the post-mortem certificate issued by P.W.10, the Doctor. Further, the fact that the deceased died out of homicidal violence was never questioned by the appellants. But, what is questioned by them before the court below and equally here also is the evidence of P.W.1, the time and place of occurrence and all attendant circumstances, which according to the learned counsel for the appellants would lead to a conclusion that such an occurrence could not have taken place at all.
7.The case of prosecution was that both P.W.1 and her husband were proceeding from the village to the Bank and after making payment of interest, they were proceeding towards their village; that at that time, both the accused came in a TVS-50, which was driven by A-2; that A-1 was the pillion rider and he is having wooden log also; and that at the place of occurrence at about 1.00 p.m., it was A-1 who attacked the deceased with the wooden log and caused his death instantaneously. The first doubt that arose in the judicial mind is whether such an occurrence could have taken place at 1.00 p.m., as put forth by the prosecution. According to P.W.15, the Head Constable, P.W.1 appeared before the Ezhayirampannai Police Station and gave Ex.P.1, the complaint and on the strength of the same, a case was registered at 2.00 p.m., wherein it was specifically averred that the occurrence has taken place at 1.00 p.m. According to P.W.17, the Investigator, after receiving the copy of the F.I.R., he proceeded to the scene of occurrence, prepared observation mahazar and rough sketch and conducted inquest on the dead body of the deceased between 2.30 p.m. and 5.00 p.m. and thereafter, the dead body was sent to the Government Hospital for the purpose of autopsy. A perusal of the post-mortem certificate would reveal that the requisition for the post-mortem along with the dead body was received by the Doctor at the Government Hospital at about 13.00 hours. This would cast a doubt whether the occurrence could have taken place at 1.00 p.m., as put forth by the prosecution and whether P.W.1 could have been the eyewitness to such an occurrence and whether the case was actually registered at 2.00 p.m. and whether the inquest was conducted by the Investigator between 2.30 p.m. and 5.00 p.m., as claimed by him. All these doubts will naturally go to the root of the prosecution case.
8.According to P.W.1, she went along with her husband to the Bank and paid the interest. The materials available would go to show that the Bank was on strike on 18.09.1998 and there was no business transaction at all. Further, according to her, the passbook and all the documents were with her husband and she did not take the same from the place of occurrence. Further, those documents were never recovered by the Investigator either from the place of occurrence or from the dead body at the time of post-mortem. All would go to show that the passbook and the other documents were produced before P.W.17 on the next day and they were recovered even without a mahazar. Hence this would be indicative of the fact that P.W.1 could not have accompanied her husband to the place of occurrence, as claimed by her.
9.In a given case like this when there is only one solitary witness, which remained uncorroborated and that too the said witness happened to be the close relative of the deceased, the court is mindful of caution to exercise more care and caution. If applied, the court has to necessarily reject the evidence of P.W.1. In the absence of P.W.1, the prosecution had no more evidence to offer. Apart from that, all the circumstances threw suspicion over the prosecution case and hence the benefit should go to the accused and therefore, the appellants are entitled for acquittal.
10.Accordingly, this criminal appeal is allowed, setting aside the judgment of conviction and sentence made by the lower court. The appellants are acquitted of the charges levelled against them and they are directed to be released forthwith unless their presence is required in connection with any other case.
vvk To
1.Inspector of Police, Ezhayirampannai Police Station, Virudhunagar District.
2.The Principal Sessions Judge, Virudhunagar District at Srivilliputhur.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.