Madras High Court
Vellathuruvai vs State Of Tamil Nadu on 7 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR. JUSTICE V.S.RAVI
Crl.A(MD)No.251 of 2010
1.Vellathuruvai
2.Koppaththi .. Appellants/Accused Nos.1 & 3
Vs.
State of Tamil Nadu,
rep. by the Inspector of Police,
Panavadalichatiram Police Station,
Tirunelveli District.
(Crime No.69 of 2007) .. Respondent/
Complainant
PRAYER
Criminal Appeal filed under Section 374(2) of Cr.P.C. against the
judgment, dated 07.06.2010, made in S.C.No.467 of 2007, by the learned
Additional District and Sessions Judge (FTC No.I), Tirunelveli.
!For appellants : Mr.A.Thiruvadikumar
^For respondents : Mr.C.Mayilvahana Rajendran,
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was made by S.NAGAMUTHU, J.) The appellants are the accused 1 and 3 in S.C.No.467 of 2007 on the file of the learned Additional District and Sessions Judge (Fast Track Court No.I), Tirunelveli. The second accused is one Mrs.Angammal. The trial Court framed as many as two charges. The first charge was under Section 302 IPC against the accused 1 and 3 and the second charge was under Section 302 r/w 34 IPC against the second accused. By judgment dated 07.06.2010, the trial Court acquitted the second accused, but convicted the accused Nos.1 and 3 under Section 302 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for six months. Challenging the same, the appellants are before this Court with this appeal.
2.The case of the prosecution in brief is as follows;
(a) The deceased in this case was one Mr.Maharajan. The daughter of the first accused Mrs.Kala is the wife of the deceased. The second accused is the wife of the first accused and the third accused is the sister of the first accused. PW1 is the mother of the deceased. PW2 is the paternal uncle of the deceased. PW1 and the deceased were residing at Madathupatti Village. The accused were residing in Ramakrishnapuram Village. After the marriage, between the deceased and the daughter of the accused 1 & 2, the deceased and his wife were living in Madathupatti Village. But, there were frequent quarrels between them. In the meanwhile, the wife of the deceased became pregnant out of the said wedlock. As per the custom prevailing, she was taken to the house of the accused for delivery. After the birth of the child, the wife of the deceased continued to live with her parents.
(b) While so, it is alleged that PWs.1, 2 and other relatives had gone to the house of the accused to take the wife of the deceased and the child. At 9.00 a.m. they reached the house of the accused. All the three accused were then present in their house. They welcomed PW1 and others happily and they offered coffee for all the five. Accordingly, PWs.1, 2 & 6 went into the house and they were taking coffee offered by the accused. At that time, it is alleged that the deceased came to the house of the accused in a motorcycle. On seeing him, the first accused welcomed him by saying some pleasing words. But, suddenly, the deceased in a fit of anger asked the first accused as to whether he was going to send his wife with the child to him or he was going to keep her and exploit her sexually. On hearing this, it is alleged that out of provocation, the first accused went to the cattle shed, returned with an aruval and cut the deceased on the left wrist. Then, it is alleged that the second accused dragged the deceased into the cattle shed. In the cattle shed, it is alleged that the first accused again cut the deceased below his knee and the third accused cut him on his left shoulder. It is also stated that one Madasamy, who was arrayed as the fourth accused in the FIR attacked the deceased with wooden log. The deceased fell in the cattle shed. Then, PWs.1, 2 and others rushed out of the house and cried for help. The first accused fled away from the scene of occurrence in the motorcycle left by the deceased.
(c) Then, PW1 with the help of one auto driver took the deceased to the Government Hospital at Sankarankovil. PW10 Dr.Jawahar, an Assistant Surgeon at Sankarankovil Government Hospital examined the deceased at 11.00 a.m. and found that he was already dead. The deceased was brought by one Police Constable by name Balasubramanian (PW6). PW10 was told that the deceased was attacked with an unknown weapon and the time of the occurrence was also not known. PW10 recorded the same in the accident register. Then he kept the body in the mortuary and gave intimation to the Police. PW6 also gave intimation to the Police.
(d) It is further stated that at 4.30 p.m., PW1 went to Panavadalichatiram Police Station and presented a typewritten complaint (vide Ex.P1). Based on the same, PW12 ? the Inspector of Police registered a case in Crime No.69 of 2007 under Sections 342, 323 and 302 IPC. Ex.P15 is the FIR. Then, he forwarded both the documents to the Court. Taking up the case for investigation, he proceeded to the place of occurrence at 5.30 p.m. and he prepared an observation mahazar and a rough sketch in the presence of PWs.3 & 5. Then, he recovered bloodstained earth and sample earth in the presence of witnesses. He recovered a rice pounder with bloodstain and few other materials from the place of occurrence. Then, he held inquest on the body of the deceased at 8.00 a.m. on 21.03.2007 and forwarded the body for postmortem.
(e)PW11 ? Dr.Shiba Madhavi conducted autopsy on the body of the deceased on 21.03.2007 at 11.00 a.m. She found the following injuries:
?1)A cut injury measuring 10 cm x 7 cm bone depth on the back of right knee. The nerves and muscle were cut. The right femur and tibia were damaged. There was mud around the injuries. There was no leakage of blood.
2)A fracture on the fifth finger of the right hand (base of proximal phalax fracture)
3)A cut injury measuring 4 cm x 2 cm x 1 cm on the third and fourth fingers of the right hand.
4)A cut injury measuring 4 cm x 1 cm x + cm on the right side shoulder.?
Ex.P14 is the postmortem certificate. He gave opinion that the deceased would appear to have died of shock and haemorrhage due to the injury No.I.
(f) Continuing the investigation, PW12 arrested the accused 1 & 2 at 1.30 p.m. on 21.03.2007 in the presence of PW4 and another witness. On such arrest, the first accused disclosed the place where he had hidden aruval under the motorcycle. In pursuance of the same, an aruval (MO.1) and a motorcycle (MO.8) were recovered. On returning to the Police Station, he forwarded the accused 1 & 2 to the Court for judicial remand and handed over the material objects for chemical examination. The material objects were also sent for chemical analysis. According to the report, human blood was found on all the material objects, except the aruval. On completing the investigation, he laid charge sheet against the accused 1 to 3. The fourth accused mentioned in the FIR viz., Mr.Marisamy S/o.Paulkutti Thevar was not arrayed as accused in the final report.
(g) Based on the above materials, the trial Court framed the charges, as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 12 witnesses were examined and 17 documents and 9 material objects were marked.
(h) Out of the said witnesses, PW1 and PW2 are the eyewitnesses to the occurrence. They have vividly spoken about the entire occurrence. PW3 and PW5 have spoken about the observation mahazar and the recovery of material objects from the place of occurrence. PW4 has spoken about the arrest of the accused 1 & 2 and the consequential recovery of MOs.1 & 8. PW6 is the Head Constable. He has stated that on 20.03.2007, he had gone to the Government Hospital at Sankarankovil for a different purpose. At that time, the deceased was brought to the hospital by his relatives. As requested by them, he took the deceased into the hospital and produced him before PW10 for examination. PW10 declared him dead. Thereafter, according to him, he informed the same to the Police Station over phone. Then, after the arrival of the Inspector of Police and after the inquest was over, he handed over the body for postmortem and then, he recovered the dress materials from the dead body and handed over the same to the Inspector of Police - PW12.
(i) PW7 has stated that he carried the FIR from the Police Station to the Court and handed over the same at 10.50 p.m. to the learned Magistrate. PW8 is the Head Constable, who has stated that he handed over the material objects from the Court to the forensic lab for examination. PW9 is the Head Clerk of the Magistrate Court who has stated about the fact that he forwarded the material objects for chemical examination on the orders of the learned Magistrate. PW10 has spoken about the admission of the deceased and the declaration made him that the deceased was dead. He has also spoken about the intimation given to the Police Station. PW11 has spoken about the autopsy conducted and his final opinion regarding the cause of death. PW12 has spoken about the registration of the case and the investigation done.
(j) When the above incriminating materials were put to the accused, they denied the same as false. On their side, they examined one Dr.Poorachandirika as DW1. According to DW1, the second accused - Angammal was mentally ill and she was kept in the hospital for about eight years. She has further stated that at the time, when she was tried before the trial Court, she was relieved from paranoid schizophrenia. One Dr.Swaminathan is examined as CW1, who has stated that though the second accused was mentally ill suffering from Paranoid schizophrenia, at the time of occurrence she was alright.
(k) Having considered all the above, the trial Court acquitted the second accused, but convicted the accused 1 and 3 alone. That is how they are before this Court with this appeal.
3. We have heard the learned counsel for the appellants and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully.
4. The prosecution relies mainly on the evidences of PWs.1 & 2. The occurrence had taken place near the house of the accused in their village. According to the learned counsel for the appellants, the presence of PWs.1 and 2, at the time of occurrence, is highly doubtful. PWs.1 and 2 belonged to Madathupatti Village, whereas the occurrence had taken place in Ramakrishnapuram village. Thus, they are chance witnesses. It is well settled that if a witness claimed to have been present at the time of occurrence by chance, it should be proved to the satisfaction of the Court as to what was the reason for which that witness was present at the time of occurrence. Here, in this case, it is stated that in order to take back the wife of the deceased from the house of the accused, PWs.1 and 2 and others had gone there. It is further stated that on seeing them, the accused party welcomed them with all happiness and after entering into the house, they offered coffee. If this is true, then there was no motive for the accused party against the deceased party. In our considered view, this is only an innovation by the prosecution to probabilise the presence of PWs.1 & 2 at the house of the accused. We have got doubt as to whether PWs.1 and 2 would have gone to Ramakrishnapuram Village to the house of the accused. Our doubt is further strengthened for the following reasons.
5. Had it been true that PWs.1 and 2 had seen the occurrence, they would have taken the deceased to the hospital. PWs.1 and 2 said that they only took the deceased to the hospital. But, according to PW10, the deceased was brought by PW6 - the Head Constable, attached to the respondent Police Station. PW6 has stated that he had gone to the hospital for a different purpose and at that time, with a view to help the relatives of the deceased, he took the deceased to the doctor. At the time, when PW10 enquired as to the history of the injuries on the deceased, it was told to him that the weapon used was not known and the time of occurrence was also not known. If really PWs.1 and 2 were present and they were by the side of PW6, they would have told the doctor that the deceased was attacked by known persons with aruvals at 9.00 a.m. The very fact that these details were not known to PW6 and it was not informed to PW10, would go to show that PWs.1 and 2 would not have taken the deceased to the hospital at all. They would not have been by the side of PW6. Thus, there is some doubt about this story propounded by the prosecution.
6. Then, how PW6 came in the picture, took the deceased to the hospital and admitted him in the hospital, are not clear. The very fact that he told the doctor that the place of occurrence, the time of occurrence, the weapon used were not known, would go to show that the actual occurrence was not seen by anybody, including PWs.1 and 2. Then, the deceased was declared dead by PW10 at 10.00 a.m. itself. PW10 himself intimated the Police about the death of the deceased. PW6 has stated that he also informed the Police over phone about the occurrence. It is not as though PW6 was working in a different Police Station. He was working only in the respondent - Police Station. While so, it is not explained to the Court as to why no Police officer had gone to the hospital to receive the complaint from PW1 or some one else immediately. Despite intimation from the hospital and despite intimation from PW6, no Police officer had gone to the hospital immediately, for which absolutely there is no explanation.
7. According to PW12, PW1 appeared before him at 5.00 p.m. with a typewritten complaint. It is not known as to who drafted and who gave the particulars. Ex.P1 is the typewritten complaint. According to the earliest version spoken through Ex.P1, the deceased was attacked by four persons. The fourth accused was one Mr.Marisamy. The allegation was that the fourth accused attacked the deceased with wooden log. But, during investigation, it was found that the said allegation is false and Marisamy was falsely implicated. Therefore, he was omitted in the final report. Thus, it is crystal clear that an attempt had been made using the above enormous and unexplained delay to implicate at least Mr.Marisamy. The final report was, thus, filed only against the accused 1 to 3.
8. The trial Court has found that the allegations against A2 are false and thus, the trial Court has disbelieved the evidences of PWs.1 and 2 as against A2. Admittedly there is no independent witness examined. As we have already pointed out, the presence of PWs.1 and 2 at the place of occurrence is highly doubtful. The intervention of PW6 to take the deceased to the hospital also creates further doubt. The above facts and the fact that PW10 was told that the place of occurrence, the time of occurrence and the weapon used were not known, all would go to show that PWs.1 and 2 would not have been present at the time of occurrence. The FIR has been found to be a fabricated one. The evidences of PWs.1 and 2 have been disbelieved as against A2 by the trial Court. In these circumstances, it is very difficult to sustain the conviction based on the evidences of PWs.1 and 2. In our considered view, the prosecution has failed to prove the case against the appellants /A1 and A3 beyond reasonable doubts. For these reasons, we are impelled to acquit the appellants/A1 and A3.
9. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed by the trial Court against the appellants/A1 and A3 in S.C.No.467 of 2007 is set aside and they are acquitted. The bail bond, if any, executed by them shall stand terminated. The fine amount, if any, paid shall be refunded to them.
To
1.The Additional District and Sessions Judge, (FTC No.I) Tirunelveli.
2.The Inspector of Police, Panavadalichatiram Police Station, Tirunelveli District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..