Vethamuthu Anthony Raj vs The State on 20 December, 2011

[Cites 11, Cited by 0]

Madras High Court

Vethamuthu Anthony Raj vs The State on 20 December, 2011

The appellants in Crl.A.No.51 of 2011 are the accused Nos.1 and 2 and the appellants in Cr.A.(MD).No.26 of 2011 are the accused Nos.4 and 6 in S.C.No.34 of 2008 on the file of the Principal Sessions Judge, Virudhunagar District at Srivilliputhur. Totally there were seven accused. The learned Sessions Judge by judgment dated 12.01.2011 acquitted the accused 3,5 and 7 of all charges. The fourth accused has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and under section 506(ii) IPC to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- (no default sentence). The learned Sessions Judge convicted the appellants 1, 2 and 6 under Section 324 IPC and sentenced them to pay a fine of Rs.3,000/-, in default to under rigorous imprisonment for six months under Section 506(ii) IPC to undergo rigorous imprisonment for three yers and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence, the appellants have come up with this criminal appeals.

The prosecution witness No.3, Mr.V.Paulsamy, feeling aggrieved by the acquittal of the accused 3,5 and 7, has come up with Cr.R.C.No.415 of 2011. Since these two appeals and criminal revision case arise out of one and the same judgment, we have heard them together and we disposed of by means of this common judgment.

The case of the prosecution in brief is as follows:

The deceased in this case was one Gopalraj. He was a resident of Panthalkudi village. He belongs to Reddiyar community. P.W.1 is his cousin. All these accused (1 to 7) belong to Christian religion and they also belong to the same village. On an earlier occasion, according to the prosecution, these accused had spoken ill of the community of the prosecution party. On an yet another occasion, it is alleged that the accused party eve teased the woman folk belonging to the prosecution party. Both the occasions were brought to the notice of the deceased Gopalraj. This is stated to be the motive for the occurrence.

On 19.09.2007, at 12 mid night, P.Ws.1 to 3 and the deceased, were returning from bazaar to their place of residence. When they were passing through Kaliamman Koil street, the accused Nos.5 and 6 were sitting near a church. The deceased Gopalraj went towards them and questioned them about the above two incidents. The deceased also attacked the accused Nos.4,5 and 6 with hands. Accused 4 to 6 raised alarm. Immediately the other accused came running from the Church. The first accused had a suri kathi in his hand, the third accused had a wooden log. The fifth accused had suri knife and wooden log, the seventh accused had thoratti kambu and suri knife. On seeing them, the deceased started to go. P.Ws.1 to 3 also started moving with the deceased. At that time, suddenly, the first accused Sekar attacked the deceased with suri knife on the right side of his chest. The second accused attacked the deceased on his head on both sides with aruval. The third accused attacked the deceased on his back of chest with wooden log. The deceased fell down. After that, the fourth accused snatched the thorattikambu from the 7th accused and attacked on the abdomen of the deceased. Due to the injuries on the abdomen, the intestine came out. The fifth accused attacked the deceased on his right leg with wooden log. The sixth accused snatched suri kathi from A7 and attacked the deceased on the left eye brow. The seventh accused attacked the deceased with hands on his face. This rendered the deceased to fall unconscious in a pool of blood. The accused brandished the weapon against P.Ws.1 to 3 and flood away from the scene of occurrence.

It is the further case of the prosecution that the first accused attacked his own man namely, the accused Nos.4 and 6. The other accused also attacked these two accused A4 and A6 with wooden logs and caused injuries. Then the first accused directed A4 and A6 also to go to the police station and to prefer a complaint falsely against the prosecution party. P.Ws.1 to 3 raised alarm, which attracted the villagers. Thereafter the deceased was taken in an Auto to Aruppukottai Government Hospital. P.Ws.1 to 3 also went there. At 11.45 p.m., on 19.09.2007, P.W.9, Dr.Sakthivel examined the deceased and found that he was already dead. After declaring him dead, he transmitted th ebody to the mortuary. On his examination, he found the following injuries on the body of the deceased:

1.A penetrating injury of 3" x 2" size x 1 +" depth with small intestines expelled out along with mesentary with bleeding in the middle of lower abdomen.

2.A laceration of 1 cm x + cm x bone depth on right lower chest. 3.A laceration of 2 + cm x + cm x bone depth on right lower chest. 4.A laceration of 2 + cm x + cm x bone depth on left parietal scalp.

On 19.09.2007, at 11.30 p.m., the accused 4 and 6 went to the Panthalkudi Police station. P.W.12, the then Head Constable attached to Panthalkudi Police Station forwarded them to the Government Hospital at Aruppukottai along with medical memos for treatment for the injuries found on them. On the same day, at 12.15 p.m., P.W.12 received a message from Aruppukottai Police Station about the death of the deceased. Immediately, he proceeded to the Government Hospital at Aruppukottai, where he obtained a complaint from P.W.1 unde Ex.P13. On returning to the police station, at 2.00 a.m., he registered a case in Crime No.121 of 2007 under Section 147, 148, 341 and 302 IPC against these accused. Ex.P17 is the First Information Report. He forwarded the First Information Report and the complaint to the Court and then handed over the case diary to P.W.14 for investigation. Taking up the case for investigation, P.W.14, the then Inspector of Police attached to Aruppukottai Taluk Police Station proceeded to the place of occurrence at 02.45 a.m. and prepared an observation mahazar in the presence of P.W.7 and another witness under Ex.P2. He recovered bloodstained earth and sample earth from the place of occurrence (M.Os.5 and 6). Under Ex.P3 Mahazar in the presence of the same witnesses, he prepared a rough sketch showing the place of occurrence under Ex.P19. Then, examined P.Ws. 1to 3 and few more witnesses and recorded their statements. He conducted inquest on the body of the deceased and prepared Ex.P20-inquest report. Then, he forwarded eh body of the deceased for postmortem. P.W.10, Doctor Sampath conducted inquest on the body of the deceased at 11.30 a.m. on 20.09.1997. During autopsy, he found the following injuries:

External injuries: 1.Lacerated wound in the right parietal region 7x2x2 cm bone depth.

2.A lacerated wound in the left parietal region 7x2x2 cm bone depth.

3.Lacerated wound just lateral to the left eyebrow 1x1x1 cm

4.A stab wound in the right side of chest + cm radius 5 cm depth just lateral to the xiphoid process in the 7th I.C.S.

5.A lacerated wound in the right inguinal region 8x3x4 cm entering into the pelvic cavity. Small bowel prolapsed through the wound.

Internal examinations : 1. Abdomen-uniform, peritoneal cavity filled with fluid blood. Thorax:there was a hole in the 6th I.C.S. Just lateral to the sternum corresponding to the external stab wound in the chest. Heart 300 gms chambers empty. Lungs - left 60 gms pale. Right 500 gms pale. No lung injury. Hyoid bone intact. Stomach-empty. Liver 1500 gms-pale - no injury. Spleen 150 gms pale. Kidney 160 gms pale. Intestines distended with gas-no-injury-bladder 100 ml of urine present. Major vessels in the inguinal region were cut. Head, skull intact. Membranes intact. Brain pale 1100 gms. Spinal column intact.

Finally, he gave an opinion that the deceased would appear to have died of hemorrhage and shock due to injury to major vessels in the right inguinal region 12-18 hours prior to autopsy. Ex.P14 is the postmortem certificate.

Continuing the investigation, P.W.14, collected the cloth found on the body of the deceased and forwarded the same to the Court. Then, he examined few more witnesses and recorded their statements. On 22.09.2007 at 5.00 a.m., he arrested the accused Nos.4 and 6 at Panthalkudi Muthalamman Temple in the presence of P.W.5 and another witness. On such arrest, the sixth accused Maria Sabariraj The appellant is the sole accused in S.C.No.56 of 2009 on the file of the learned Sessions Judge, Sivagangai. By judgment dated 15.07.2010, the trial Court has convicted him under Sections 302 and 379 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for two years for the offence under Section 302 IPC and for the offence under Section 379 IPC, to undergo rigorous imprisonment for one year and to pay a fine of Rs.250/- in default, to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.

2.The case of the prosecution in brief is as follows:

The deceased in this case was one Dhanam, aged 40 years. She was residing at Thattankulam Village. P.W.1 is her son. He is residing at T.Pazhaiyur Village. The deceased was doing fish and vegetable business. On 05.06.2008, in the morning, the deceased had gone to Kazhukerkadai area for selling vegetables. In usual course, she should have returned before noon. Since she did not return so, P.W.1 went in search of her. He was told by somebody in that area that the deceased left after finishing her business by 10 a.m. itself. Yet, he went in further search of the deceased. On the same day at 5.00 p.m., about 300 feet away from Kazhukerkadai Kanmai Road, the dead body of the deceased was found. There were cut injuries on the body indicating that she was murdered.

2.1. Immediately, P.W.1 proceeded to Thiruppuvanam Police Station and preferred a complaint under Ex.P1 at 11 p.m. P.W.10, the then Sub Inspector of Police, attached to Thiruppuvanam Police Station, registered a case on the said complaint in Crime No.242 of 2008 under Sections 302 and 379 IPC. Ex.P13 is the First Information Report. Then, he forwarded Exs.P1 and P13 to the learned Judicial Magistrate, Manamadurai, and then handed over the case diary to P.W.11 for investigation.

2.2. Taking up the case for investigation, P.W.11, the then Inspector of Police attached to Thiruppuvanam Police station, proceeded to the place of occurrence at 12.15 a.m. on 06.06.2008 and prepared an observation mahazar under Ex.P2 in the presence of P.W.3 and another witness. He also prepared a rough sketch under Ex.P14 showing the place of occurrence. Then, he recovered bloodstained earth, sample earth and other materials (M.Os.4 to 12) from the place of occurrence under a mahazar. Then, he conducted inquest on the body of the deceased and prepared Ex.P15 report. Thereafter, he forwarded the dead body for autopsy.

2.3. P.W.9 conducted autopsy on the body of the deceased at 2.00 p.m. on 06.06.2008. He found the following injuries:

1.A sharp heavy weapon cut injury of 25 cm x 5 cm x 2 cm transversing across front of middle 1/3 part of neck, exposing the underlying neck muscles nerves and major vessels (Carotid and Jugular) over right side cut.

2.A sharp heavy weapon cut injury of 29 cm x 4 cm x 6 cm extending across the face from left cheek, involving mouth extending up to right cheek.

3.Cut injury of 3 x + x + cm over right ear lobe with its lower part found missing.

4.Cut injury of 2 x + x + cm over left ear lobe with its lower part found missing.

5.A sharp heavy weapon cut injury of 7x 2 x 1 cm over vault of scalp exposing skull bone. Underneath present.

Ex.P12 is the postmortem certificate. P.W.9 opined that the deceased would appear to have died of the injuries over the front of the neck which would have been caused by a sharp heavy weapon. He further opined that the deceased would appear to have died 12 to 36 hours prior to postmortem.

2.4. Continuing the investigation, P.W.11 recovered the dress materials found on the body, which are Exs.P14 to P16. On 11.06.2008, at 5.00 p.m, he arrested the accused in the presence of P.W.7 and another witness at Kazhukerkadai Vilakku Road. On such arrest, he gave a voluntary confession to P.W.11, which was reduced into writing. In the said statement, he had disclosed that he would identify the place where he had hidden the aruval and the jewels, namely, chain, ring and ear studs. In pursuance of the said disclosure statement, the accused took P.W.1, P.W.7 and other witness to a place near Tasmac godown in Kazhukerkadai village at 06.30 p.m. and from the place of concealment produced a pair of ear studs (M.O.2), T.V. Model ring (M.O.3), a gold chain, (M.O.1) and bloodstained aruval (M.O.13). P.W.11 recovered the same under Ex.P5 mahazar. Then, he returned to the police station with the accused and recovered the articles and forwarded the accused to the Court for remand. Then he forwarded the material objects also to the Court with a requisition to send the same for chemical examination. Accordingly, from the Court, they were sent for chemical analysis and the chemical analysis report is Ex.P9. Ex.P10 is the serology report. On completing the investigation, he laid the charge sheet against the accused under Section 302 and 379 IPC.

3. Based on the above materials, the trial Court framed charges against the appellant under Sections 302 and 379 IPC. Since the accused denied the same, he was put on trial. During the trial, on the side of the prosecution as many as 11 witnesses were examined and 15 documents were exhibited besides 16 material objects. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials, he denied the same as false. However, he did not chose to examine any witness on his side nor to exhibit any documents. Having considered the above, the trial Court found him guilty under both the charges and accordingly punished him. That is how, the appellant is before this Court with this appeal.

4. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.

5. Admittedly, this is a case based only on circumstantial evidence. According to P.W.1, the deceased left her house early in the morning on 05.06.2008, but she did not return. This fact has not been disputed by the prosecution. At the time, when she left, she was wearing gold jewels, namely, M.Os.1 to 3. Thereafter, on the same day, at 5 p.m, they found the body of the deceased near Kazhukerkadai Kanmai. According to P.W.9, Doctor, who conducted autopsy, there were cut injuries on the body of the deceased and the death was due to the injury on the neck. Thus, the prosecution has clearly established that the deceased died of homicidal death before 5 p.m. According to P.W.1, M.Os.1 to 3 were not found on the body. More particularly, there were injuries on both the ears indicating that the ear studs were removed by violence. From this evidence of P.W.1, it has been clearly established by the prosecution that the person, who committed the murder has committed the theft also. Thus, it is crystal clear that the murder and theft have been committed in one and the same occurrence.

6. Now, the question is as to who is the perpetrator of the crime. The prosecution tries to establish that it was the accused herein is the perpetrator of the crime by means of circumstantial evidence.

6.1. The first and foremost circumstance is that of the evidence of P.Ws.4 and 5. According to them, on 05.06.2008, at about 6.30 a.m., the deceased was proceeding towards Kazhukerkadai and she was followed by this accused. The evidence of these two witnesses have been very seriously challenged by the accused. Assuming that the evidence of these witnesses are true, in our considered opinion, that by itself would not constitute the foundation to convict the accused. The simple act of following a person, who was subsequently found dead cannot be stated to be incriminating, based upon which, there can be conviction.

6.2. The main circumstance relied on by the prosecution is that the accused was arrested on 11.06.2008 at 5 p.m. in the presence of P.W.7 and another witness and on such arrest, he gave a voluntary confession. It is the further case of the prosecution that in consequence of the said information furnished by the accused, M.Os.1 to 3 and M.O.13 were discovered from the place of concealment. M.O.15, according to the analysis report, contains human blood. Thus, M.O.13 can be linked to the death of the deceased. Even then, there is yet another difficulty that the blood group could not be detected. M.Os.1 to 3 are the stolen properties, about which, there is no much of difficulty in coming to such a conclusion. If it is disbelieved that in consequence of the disclosure statement made by the accused on 11.06.2008 that he had produced the M.Os., from the place of concealment, this would have turned out to be a very strong circumstance against the accused. But, unfortunately, it has become too difficult for this Court to believe the said circumstance projected by the prosecution, in view of the evidence of P.W.2.

6.3. P.W.2 is the sister of the deceased. According to her, on 05.06.2008, the deceased went missing and the dead body was found around 6 p.m, on the same day. She has further stated that immediately that on 05.06.2008, P.W.1 preferred a complaint to the police. But during cross examination, she has categorically stated that within two days thereafter, when she went to the police station, she found the accused in the police station in police custody. She has further stated that when she continued to go for few days thereafter, she found the accused in the police custody, on all such occasions of her visit. She has further stated that within two days of the occurrence, when she went to the police station, the accused was introduced to her by the police as the culprit and M.Os.1 to 3 were also already in the police station in the police custody. Absolutely, there is no explanation for this contradictory evidence adduced by P.W.2. This witness has not been treated as hostile and her above version has not been challenged by the prosecution. Thus, her evidence remains unchallenged to the effect that on 07.06.2008 itself, the accused was in the police custody and he continued to be in the police custody besides the fact that the stolen articles were in the police custody on 07.06.2008 itself. In view of the evidence of P.W.2, which remains unchallenged, it is too difficult to believe the evidence of P.Ws. 7 and 11 that the accused was arrested only on 11.06.2008. If, once, we disbelieve the case put forward by the prosecution that the accused was arrested only on 11.06.2008, then, consequently, recovery of the stolen articles and the aruval from the possession of the accused also cannot be believed. In such view of the matter, the main circumstance relied on by the prosecution also has not been established.

7. Apart from the above three circumstances, the prosecution has not projected any other circumstance before the trial Court. It is needless to point out that in a case based on circumstantial evidence, all the circumstances projected by the prosecution should be proved beyond reasonable doubt by means of legally acceptable evidence and the circumstances so proved should form a complete chain so as to lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime and there is no hypothesis, which is consistent with the innocence of the accused. In this case, the only circumstance that on 05.06.2008, the accused was found following the deceased will not be sufficient to hold him guilty.

8. In such view of the matter, in our considered opinion, the trial Court was not right in convicting the accused. We hold that the prosecution has not proved the case beyond reasonable doubt and therefore, the accused is entitled for acquittal.

9. In the result, the appeal is allowed; the conviction and sentence imposed on the appellant is set aside and he is acquitted of all charges. Fine amount, if any, paid shall be refunded to the accused. The accused shall be set at liberty forthwith, if his detention is not required in any other case.

RR To

1.The Sessions Judge Sivagangai District.

2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Unlock Advanced Research with PRISMAI

Madras High Court