Madras High Court
State vs Mookkiah on 25 January, 2007
Author: G.Rajasuria
Bench: D.Murugesan, G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/01/2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal No.1137 of 1998 State, Rep.by Public Prosecutor, High Court, Madras. ... Appellant/Complainant Vs 1.Mookkiah 2.Subbiah ... Respondents/Accused 1 & 2 Appeal under Section 378 of the Code of Criminal Procedure against the judgment of the learned II-Additional Sessions Judge, Tirunelveli, dated 24.08.1998 made in S.C.No.264 of 1996. !For Appellant ... Mr.P.N.Pandithurai, Addl.Public Prosecutor. ^For Respondents ... Mr.C.Muthu Saravanan :JUDGMENT
G.RAJASURIA,J The State is the appellant herein. Aggrieved over the judgment of acquittal, acquitting the respondents 1 and 2, who are accused Nos.1 and 2, of the charges framed as against them under Section 302 read with Section 34 IPC and under Section 302 IPC, respectively by the learned II-Additional Sessions Judge, Tiruenlveli in his judgment dated 24.08.1998 in S.C.No.264/1996, the State has preferred the present appeal.
2.Broadly but briefly, precisely but narratively, the case of the prosecution as stood exposited from the records could be portrayed thus:
(a)Uluppadi Parai is a small village in Ambasamudhram Taluk within Kallidaikurichi police station. Unlike the peace that prevailed in villages in the bygone ages, now the trend got changed and even villages and hamlets are not free from crimes of the worst sort committed by the villagers as against the members of the same village and Uluppadi Parai appears to have not carved out an exception to it. It so happened that the deceased Ramaiah solicited the wife of accused No.2 Subbiah, to have illicit intercourse with him and coming to know of such fact, accused No.2 harboured enmity in his heart as against the deceased.
The fact remains that accused Nos.1 and 2 and the deceased were all residents of the same hamlet situated in the aforesaid village, namely, Uluppadi Parai. The residents of that hamlet had a nearby place as open air latrine which situated near a water body.
(b)On 12.05.1992 at about 5.30 a.m., when the deceased Ramaiah went to the said open air latrine to attend to the calls of the nature, accused Nos.1 and 2 in furtherance of their common intention to murder Ramaiah, followed him and dealt blows on him with bill hooks and thereby made a short work of him on the spot itself and fled away from the scene. However, P.W.1 Ramiah, the father-in- law of the deceased who also heard the same name of the deceased and P.W.5 Sudalaimuthu, both witnessed the ghastly crime and despite they shouted at the assailants not to perpetrate the gruesome act, the accused accomplished their task of murdering the deceased. Thereupon, P.W.1 Ramaiah, accompanied by P.W.5 Sudalaimuthu, P.W.4 Shanmugam and one Kanagaraj, who alleged to be a prominent person in that village went to Kallidaikurichi Police Station and P.W.1 lodged an oral complaint and the said oral version of P.W.1 Ramiah was reduced into writing by P.W.10, the Sub-Inspector of Police, as contained in Ex.P-1 and he registered the case in Crime No.173 of 1992 under Section 302 IPC as against both the accused at 8.00 a.m. on the same day as per Ex.P-15 the Express FIR and sent the same to the Court through P.W.9 the Grade-I Constable.
(c)P.W.11, the Inspector of Police, took up the investigation, visited the place of occurrence, prepared Ex.P-6 Observation Mahazar in the presence of P.W.6 village administrative officer, drew Ex.P-16 rough sketch and caused the dead body to be photographed through P.W.3 the photographer. Ex.P-4 series are the photographs and Ex.P-5 are the negatives. P.W.11 conducted inquest over the dead body and prepared Ex.P-17 the inquest report. He examined P.W.1, P.W.4, P.W.5 and others and recorded their statements. Thereafter he sent the body for postmortem, with Ex.P-2 requisition, through P.W.8 the Constable. The Investigating Officer from the place of occurrence collected M.O.5 bloodstained earth, M.O.6 sample earth, M.O.3 a pair of chappals, M.O.4 Jatti and M.O.7 excreta in plastic bag, under Ex.P-7 Mahazar, attested by P.W.6.
(d)P.W.2 Dr.K.Banumathi, attached to Ambasamudhram Government Hospital, conducted autopsy on the body of the deceased and found as many as eight injuries all over the body and issued Ex.P-3 postmortem certificate. After postmortem, P.W.8 recovered M.O.10 lungi and M.O.11 waist cord from the dead body and handed them over to the Inspector of Police.
(e)P.W.11, the Inspector of Police, arrested both the accused on the next day of the occurrence in the presence of P.W.6 and in pursuance of the admissible portion of the confession statement of accused No.2 Subbiah, which is marked as Ex.P-8, M.Os.1 and 2, billhooks were recovered under Ex.P-9 mahazar attested by P.W.6. The Investigating Officer also seized M.Os.8 and 9 bloodstained lungis worn by both the accused under Ex.P-10 attested by the same witness. He caused the relevant M.Os. to be sent to the experts through the Magistrate Court for obtaining expert opinion. Ex.P-11 is the requisition given to Court. P.W.7, the Magistrate Court's Clerk, spoke about the sending of the material objects for chemical analysis under Ex.P-12, the letter of the Court and the receipt of Ex.P-13, the Chemical Examiner's Report and Ex.P.14, the Serologist's report.
(f)After completing the investigation, P.W.11, the Investigation Officer, laid the police report in terms of Section 173 of Crl.P.C. as against both the accused before the Magistrate Concerned, who committed the case to the Court of Session, which court framed charges as against accused No.1 under Section 302 read with Section 34 IPC and as against accused No.2 under Section 302 IPC, for which they pleaded not guilty and their defence was one of total denial.
3.In order properly and convincingly to drive home the guilt of the accused, during trial, on the side of the prosecution eleven witnesses were examined as P.Ws.1 to 11 and Exs.P-1 to P-17 were marked, along with M.Os.1 to
11. when the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime and pleaded not guilty. On the side of the defence, D.W.1, the Village Administrative Officer of Kallidaikurichi-Part-I was examined and Ex.D-1 was marked. Ultimately, the trial court acquitted both the accused of the offences with which they were charged.
4.Being aggrieved by the said judgment of acquittal, the State has preferred the present appeal on the following grounds, among others:
The trial court magnifying the minor infirmities in the case of the prosecution acquitted the accused; even though there was no delay either in registering the FIR or in despatching the same to the concerned Magistrate Court, the trial court held otherwise as though there was a long delay; despite the prosecution having proved the case by examining eye-witnesses, including P.W.5, an independent eye-witness, who had no axe to grind in the matter, the trial court acquitted both the accused erroneously; the trial court also wrongly held as though there were discrepancies in highlighting the time of the arrest of the accused; the trial court erroneously rejected Exs.P-8 to P-10 on the sole ground that accused No.2 subsequently declined to give any confession before the Judicial Magistrate; the trial court's finding that the eye-witnesses did not speak about the overt acts before the court is not based on sound reasoning; the findings of the trial court are perverse; the trial court, considering the medical evidence that there were partly digested food particles in the stomach of the deceased, held that there was suspicion about the time of death and such finding of the trial court is erroneous. Accordingly, the State prays for reversing the judgment of acquittal and for convicting both the accused.
5.The points for determination are:
(1)Whether the prosecution proved the motive for the crime?
(2)Whether accused Nos.1 and 2 in furtherance of their common intention murdered the deceased Ramaiah as projected by the prosecution?
(3)Whether the trial court's judgment of acquittal is perverse and not based on any proper appreciation of evidence on record?
(4)whether both the accused are to be convicted and if it so under what penal provisions and what should be the sentence if any awardable?
6.Right at the outset, we may proceed to highlight the fact that in case of appeal against acquittal, the High Court should refrain from replacing the views of the trial court with its own view when two interpretations are possible with regard to the evidence available on record. In this connection, the following decisions of the supreme Court are referred to:
(i) Haji Kahn v. State of U.P -(2005) 13 Supreme Court Cases 353.
(ii) Peerappa v. State of Karnataka - (2005) 12 Supreme Court Cases 461.
7.Keeping in view the aforesaid dicta as found posited by the Hon'ble Apex Court, we proceed to scrutinize the evidence on record.
Point Nos.1 and 2:
8. Undoubtedly and indubitably, motive plays a vital role in perpetrating crimes; however, absence of motive in all cases should not result in giving a finding as against the prosecution case. Motive is a double edged weapon, over which there could be no second opinion. If circumstantial evidence only are relied on, then motive for the crime gains prominence. So far as this case is concerned, the prosecution has come forward with a clear case relating to the motive of the accused in committing the crime. Ex.P-1, the complaint, lodged by P.W.1 Ramiah, would speak about the motive part of the crime to the effect that a week anterior to the date of murder incident, it so happened that the deceased Ramaiah solicited Mookkammal, the wife of accused No.2 Subbiah, to have illicit intercourse with him and which triggered ill-feeling between accused No.2 and the deceased. P.W.1 and P.W.5 deposed in unison about the motive for the crime by detailing and delineating the relevant facts. P.W.1 is none but the father- in-law of the deceased himself and even then, to the risk of spoiling his own son-in-law's reputation as a gentleman, went to the extent of letting the cat out of the bag by stating that his son-in-law, the deceased Ramaiah, indulged in such nefarious and lubricious act of soliciting another man's wife, namely accused No.2's wife, for illicit intercourse.
9.Learned counsel for the accused/respondents would argue as though the very FIR itself is a doubtful document as Ex.P-1, which was claimed to have been recorded by P.W.10, the Sub-Inspector of Police and Ex.P-15, the printed FIR which also was claimed to have been recorded by him, do not tally with each other so far the hand-writings are concerned. There is no expert opinion available on record. Learned counsel for the accused/respondents drew our attention to certain words in both the documents and tried to point out that there are ex-facie and prima facie, apparent and clear differences between the two documents.
10. So far as the hand-writing aspect is concerned, no doubt, section 73 of the Indian Evidence Act would enable the Court to compare signatures and handwritings, etc. by itself. However, there are catena of decisions to the effect that such an exercise should be resorted to sparingly and not as a matter of routine. Here, this is a murder case which is having nothing to do with the signature or handwriting. P.W.10, the Sub-Inspector of Police, in categorical terms, deposed that it was he who recorded Ex.P-1 the complaint as well as Ex.P- 15 the FIR and there ends the matter. To be very fair and impartial, we may even highlight that even though apparently certain words and sentences appear differently in those documents, we cannot conclusively hold that it was not the Sub-Inspector of Police who wrote both the documents. Furthermore, such a fact is not at all germane for adjudicating the real points involved in this case. As such, we do not want to allow ourselves to be side tracked by acceding to the arguments of the learned counsel for the accused/respondents. Further, the learned counsel for the accused/ respondents would try to canvass the point that such variation also would be one of the factors to look askance at or for causing a doubtful look at the prosecution case. Without mincing words, we would like to hold that such an argument is neither here nor there and if we allow ourselves to succumb to such persuasion, it will lead to wrong conclusion.
11.One important and significant feature which the trial court failed to note is that Ex.P-1 was signed by P.W.1 Ramaiah and it was attested by P.W.5 and also by P.W.4, who turned hostile. One Kanagaraj who also attested Ex.P-1 the complaint, was the 'Nattanmai' of the village, even though he was not an eye- witness to the occurrence. Ex.P-1 would show that the three persons, namely P.W.1, P.W.5 and P.W.4 were eye-witnesses to the occurrence and they also signed Ex.P-1, so to say P.W.1 signed as the complainant and P.W.4 and P.W.5 signed as attesting witnesses. P.W.1 as well as P.W.5 would state about the fact of Ex.P- 1 having been attested by P.W.4 and P.W.5. In fact, P.W.4 Shanmugam in unmistakable terms during chief-examination itself admitted that he attested Ex.P-1. However, he turned hostile by stating that he was not an eye-witness to the occurrence, but he only at 5.30 a.m. on the fateful day heard the sound near the water body and when he went there he saw P.W.1 and P.W.5 shouting. He would narrate that he also was engaged in watering his field during that fateful night, however he would state that he did not accompany P.W.1 and P.W.5.
12.After attesting Ex.P-1, it would be preposterous and paradoxical on the part of P.W.4 to resile from his commitment. Had really P.W.4 also not been a witness, then he being a villager living in that village, might not have chosen to attest Ex.P-1. It is not as though on the prosecution side simply the statement of P.W.4 recorded under Section 161 of Cr.P.C. alone was available. P.W.4 candidly and categorically and in unmistakable terms admitted his signature in Ex.P-1 as an attestor to it and if such a sort of clear evidence is going to be disbelieved by the trial court, for no good reason, then what other type of reasoning could be termed as perverse. In other words, if such sort of reasoning is not to be termed as perverse, then no type of reasoning could be termed so. The trial court misdirected itself without considering this glaringly available circumstance and evidence pointing towards the guilt of the accused. Simply because a witness has become hostile, the courts are not expected to throw his evidence in toto. In this connection, we may cite the following decisions of the Hon'ble Supreme Court.
(1)AIR 1997 SC 2780 - State of Gujarat vs. Anirudh Singh;
(2)AIR 1996 SC 2766 - State of U.P. vs. Ramesh (3)1997 SCC (Crl.) 63 - Parveen vs. State (4)AIR 2002 SC 3137 - Babu Sonba Shinde vs. State of Maharashtra.
The trial court, unfortunately, without keeping in mind the aforesaid salient features, simply acquitted both the accused.
13.Learned counsel for the accused/respondents would try to torpedo the evidence of P.Ws.1 and 5 as interested testimonies cooked up by the prosecution. But, absolutely there is nothing to substantiate such a contention. At this juncture, we would like to refer to the decision of the Hon'ble Supreme Court in Kartik Malhar v. State of Bihar reported in (1996) 1 Supreme Court Caes 614 to the effect that the evidence of near relatives should not be discarded on the sole ground that those are interested ones. An excerpt from the said precedent would run thus:
"18. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p.366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
In this case, this Court further observed as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
14.P.W.1, undoubtedly the father-in-law of the deceased, would in his deposition express and expatiate, narrate and put-forth, the case to the effect that he is a resident of the village Uluppadi Parai; he owns land to an extent of 1-1/2 acre; the deceased Ramaiah happened to his son-in-law, so to say the deceased married P.W.1's daughter; he knew both the accused; during the intervening night between 11th and 12th of May, 1992 at about 10.00 p.m., he, along with P.Ws.4 and 5, went to irrigate his plantain trees in the field; after doing so they had returned back at about 5.30 a.m.; while they were returning so, near Paraikulam, so to say near the place of occurrence, they heard the alarming sound "don't cut; don't cut"; thereupon P.Ws.1, 4 and 5 saw both the accused inflicting blows on the head, neck, shoulder and back of the deceased Ramaiah with billhooks, despite those witnesses shouted at them not to indulge in such perpetration of crime; and that subsequently both the accused showed clean pair of heels and thereby fled away from the scene of crime along with the weapons. P.W.1 would further narrate in his deposition that with M.O.1 billhook accused No.1 attacked the deceased and accused No.2 by another billhook M.O.2 attacked the same deceased. P.W.1 identified M.Os.1 and 2 billhooks and also M.O.3 pair of chappals found near the dead body. M.O.4 jatty was also identified by him. P.W.5, corroborated the testimony of P.W.1 in all material aspects and absolutely there is nothing to doubt the veracity of their depositions. As has been already highlighted supra, this is a case in which P.W.4 deliberately turned hostile, after clearly supporting the version of P.W.1 by volunteering himself at the initial stage even before the commencement of the investigation.
15.The trial court, upto paragraph No.22 of its judgment, narrated only the case of the prosecution and the arguments advanced on both sides. In paragraph No.23 of its judgment, the trial court resorted to the method of analysing the evidence of P.W.1 and P.W.5 by taking the help of the evidence of P.W.2, the doctor and in paragraph No.24 the trial court had discussed the medical evidence as evinced by P.W.2, the Doctor and the postmortem certificate Ex.P-3 issued by her. The trial court thereafter set out the available evidence concerning the undigested food particles found in the stomach of the deceased, the alleged delay in lodging the FIR and despatching it to the court and also about the author of the handwriting in Exs.P-1 and P-5, in addition to certain contradictions relating to utterance of words "don't cut; don't cut' etc. According to the trial court, the witnesses did not describe the overt acts clearly before it. The trial court also held that there were contradictions in describing the overt acts in the deposition of P.W.1 and P.W.5. It is therefore just and necessary to extract herein the very findings of the trial court as under.
"Mdhy; m.rh.1 kw;Wk; 5 rk;gtj;ij nehpy; ghh;j;jjhf Fwpg;gpLtJ cz;ik vd;W Vw;Wf;bfhs;sf;Toajh? ,y;iyah? vd;gJ jhd; jw;nghJs;s gpur;idahFk;. m.rh.M.1 g[fhhpid m.rh.1 bfhLj;jpUf;fpd;whh;. ,jpy; mtUila ifbahg;gk; ,Uf;fpwJ. m.rh.5 mwpntd; rhl;rp vd;W ifbahg;gk; bra;jpUf;fpwhh;. Mdhy; ,ij vGjpaJ m.rh.10 cjtp Ma;thsh; jhdh vd;gij Fwpj;J re;njfkhd R{H;epiyia Kd;gj;jpapnyna ,e;ePjpkd;wk; Fwpg;gpl;oUf;fpd;wJ. ,e;j m.rh.M.1 g[fhhpy; "btl;lhnj vd;W kUkfd; uhikah nghl;l rg;jk; nfl;L ehq;fs; K:d;W ngUk; mq;F nehf;fp Xondhk;. mg;nghJ vq;ft{h; mHFKj;J kfd; Rg;igah xU bghpa mUthshYk;> rz;Kfnty; kfd; K:f;ifah xU rpd;d mUthshYk; btspf;fp ,Ue;J bfhz;oUe;j vd; kUkfd; uhikahtpd; KJfpYk;> fGj;jpYk; khwp khwp btl;odhh;fs; ehq;fs; K:tUk; btl;lhnj> btl;lhnj vd;W ..... rg;jk; nghl;Lf;bfhz;L gf;fj;jpy; nghft[k;> Rg;igaht[k;> KUifaht[k; mUths;fSld; Xotpl;lhh;fs;" vd;W Fwpg;gpl;oUf;fpwhh;fs;. ,th;fs; F.tp.K.r.gphpt[ 161(3) goahd thf;FK:yj;jpy; fGj;jpy; xU btl;L Rg;igah btl;odhd; vd;Wk;> nkYk; Rg;igah KJfpy; 3 btl;Lfs; btl;odhd; vd;Wk;> K:f;ifah KJfpYk; ifapYk; 3 btl;Lfs; btl;odhd; vd;Wk; Fwpg;gpl;oUf;fpwhh;fs;. ,e;ePjpkd;wj;jpy; ,th;fs; rhl;rpakspf;ifapy; vjphp Rg;igah vq;F btl;odhd;> vjphp K:f;ifah vq;F btl;odhh; vd;W tpgukhf xt;bthUtUila Fw;w bray;fisg; bghWj;Jk; jdpj;jdpahf tpthpf;ftpy;iy. ,UtUnk uhikahtpd; kz;ilapYk;> tpyhtpYk;> fGj;jpYk; btl;odhh;fs; vd;Wk; m.rh.5 rhl;rpak; mspj;jpUf;fpd;whh;. m.rh.1 d; rhl;rpaj;jpy; jkJ kUkfd; kz;il> fGj;J> njhs;gl;il Kjfpy; btl;odhh;fs; vd;W bghJthf Fwpg;gpl;oUf;fpwhh;fs;. vdnt ,th;fs; uhikahtpw;F ve;bje;j fhaq;fis ve;bje;j vjphp Vw;gLj;jpdhh; vd;W brhy;y Koahky; bjsptw;w epiyapy; ,Uf;fpwhh;fs; vd;gJ g[ydhfpwJ. rk;gtj;ij ,th;fs; nehpy; ghh;j;jpUe;jhy; ahh; ahh; vq;nf> vg;go btl;odhhh;fs; vd;W cWjpahf> bjspthf brhy;y tha;g;g[s;sJ. nkYk; m.rh.1 d; rhl;rpaj;jpd;go ghiwFsk; fiwapy; ,wf;Fk;nghJ rg;jk; nfl;L rg;jk; te;j jpirf;F Xoajhf Fwpg;gpLfpd;whh;. vt;tst[ J}uj;jpypUe;J rg;jk; te;jJ vd;W tpguk; VJk; m.rh.1 brhy;ytpy;iy. m.rh.5 k; btl;lhnj> btl;lhnj vd;W bjd;g[w fiuapy; ,Ue;J rg;jk; te;jjhft[k;.... gpwF jhq;fs; Xog;ngha; ghh;j;jjhft[k; TwpapUf;fpwhh;. ,tUk; rg;jk; te;j J}uk; vt;tst[ vd;W Fwpg;gpltpy;iy."
16. It is evident from the above excerpt as well as from the perusal of the judgment of the trial Court that the trial Court tried to make a mountain out of a mole hill and also adopted a wrong approach in appreciating the evidence of eyewitnesses relating to the variations in the description of the incident. The expectation of the trial Court was that P.W.1 and P.W.5 ought to have without any least contradiction should have described about the overt acts in detail, because they happened to be the eyewitnesses, forgetting for the moment that there would be always natural contradictions and variations in the depositions of eyewitnesses relating to the overt acts of the accused. The trial Court took up the view as though such variations are fatal to the case of the prosecution. Parrot like versions of the prosecution witnesses relating to the overt acts of the accused, only would smack falsity. But, on the other hand, the natural variations would add strength to the case of the prosecution. This has not been borne in mind by the trial Court while appreciating the evidence of P.W.1 and P.W.5.
17. P.W.1 in his deposition on 04.08.1998 before the Court, so to say, about 6 years and 3 months after the date of occurrence stated before the Court to the effect that A.1 was having the small billhook M.O.1., A2 was having the big billhook M.O.2 and with that they inflicted injuries on the deceased on the head, neck, shoulder and back. In Ex.P.1, the complaint, the same P.W.1 stated that A.1 with a small billhook and A.2 with a billhook attacked the deceased Ramaiah on his back and neck repeatedly and thereupon, the deceased Ramaiah sustained cut injuries on his neck, shoulder, back and head. As such absolutely, there is no contradiction between Ex.P.1 and the deposition of P.W.1 relating to the overt acts. The expectation of the trial Court that verbatim what is in Ex.P.1 should find place in the deposition of P.W.1, was not a correct approach and it is nothing but perversity in evaluating evidence. The trial Court had thrown the baby along with bathe water.
18. P.W.5, Sudalaimuthu, in his deposition before the Court on 04.08.1998, so to say 6 years and 3 months after the date of occurrence, clearly and categorically deposed to the effect that A.1 and A.2 armed with billhooks, attacked the deceased Ramaiah on his head, neck and hip and that thereafter, they ran away. The depositions of P.W.1 and P.W.5 were a' naturel quite free from embellishment. The untutored and unembellished depositions of P.W.1 and P.W.5 unfortunately appeared to the trial Court as though they were not true ones. Despite lapse of 6 years and 3 months from the date of occurrence when the witnesses deposed before the Court, they narrated to that much extent clearly and during cross-examination, nothing fruitful has been elicited out so as to discredit the testimony. Questions were asked during cross-examination as to why the witnesses have not chosen to catch hold of A.1 and A.2 immediately at the spot and for which P.W.1 would state that he was horror stricken on seeing the incident. The trial Court was not justified in expecting those witnesses to make a hot pursuit and catch hold of the accused, a fortiori when both the accused were armed with deadly weapons and whereas P.W.1 and P.W.5 were unarmed.
19. Regarding the time of the occurrence, the trial Court simply by referring to medical evidence had arrived at a wrong conclusion.
20. P.W.2, Doctor Banumathi who conducted the post-mortem on the dead body of the deceased Ramaiah in response to the requisition Ex.P.2 from the Investigating Officer deposed with reference to Ex.P.3, the post-mortem report. In Ex.P.3, the Doctor noted the following injuries:
"Injuries: An incised would extending from lower part of right cheek, above mandible, directed downwards to the middle of back of neck; obliquely placed and of size 14 X 6 X 6 cms blood vessels, muscles, C3, C4 vertebra cut, head partially hanging and blood clots present. (2) An incised wound on centre of forehead close to midline extending to middle of sclap vertical in direction directed upwards and backwards size 14 X 4 X 6 cms underlying bone cut and brain matter coming out thro the wound. (3) An incised wound extending from middle of right side of back to right side of shoulder of size 20 X 6 X 6 cms oblique in direction, overlapping cut injuries on inferur border of wound, muscles, blood vessels cut, blood clots present. Right Scapula injured and dislocated. (4) An incised wound on right side of lower part of back below injury no.3, oblique in direction 12 X 4 X 2 cms, blood vessels, muscles cut and blood clots present. (5) An incised wound horizontal in direction 18 X 6 X 8 cms extending from left lower part of back of left waist fort side. (6) An incised wound above injury no.5 oblique in direction on left side of lower part of back to right side crossing spine 12 X 6 X 4 cms, blood vessels, muscles cut in the same direction. (7) An incised would on upper third of upper arm right, on lateral side extending to back of 12 X 4 shoulder, oblique in direction, blood vessels, muscles cut. (8) An incised would on right upper arm, upper third on medial aspect, skin depth 5 X 2 cms obliquely placed."
21. In fact, the cut injuries observed by the Doctor tally with the narration given by P.W.1 in Ex.P.1 as well as in his deposition and P.W.5 also corroborated it. In fact, the medical evidence supports the narration given by P.W.1 and P.W.5 and it is not antithetical to the evidence given by P.W.1 and P.W.5 and the version contained in Ex.P.1. The Doctor also opined that the death of the deceased might have occurred 28 to 30 hours prior to the post- mortem. The Doctor commenced the post-mortem at 10.30 a.m., on 13.05.1992 whereas as per the prosecution case, the death of the deceased occurred at 05.30 a.m., on 12.05.1992. Actually, the opinion given by the Doctor exactly tallies with the prosecution version, as the calculation of the aforesaid period comes to 29 hours and the Doctor opined that the death might have occurred 28 to 30 hours prior to the post-mortem. However, the trial Court was carried away by the evidence that there was undigested rice to an extent of 300 gm in the stomach of the deceased.
22. No doubt, P.W.2 in deposing before the Court answered during cross- examination that the death might have occurred 36 hours prior to her performing the post-mortem and that the partly undigested rice would show that rice might have been consumed by the deceased 2 to 3 hours before his death. P.W.11 during cross-examination highlighted that during the course of his investigation, he ascertained from the father of the deceased, that the deceased consumed food at 11.00 p.m., during the said intervening night. The fact remains that villagers might take food even at odd hours and no one can predict. In this connection, it has to be highlighted that with precision, the time at which the deceased consumed the food cannot be stated by observing the undigested food particles alone. As per the medical jurisprudence, it is a trait proposition that the medical opinion relating to time of death could only be approximate in view of the fact that various factors are involved in ascertaining the time of death. An excerpt from Modi's Medical Jurisprudence & Toxicology, Twenty-Second Edition, at page No.247, could fruitfully be extracted as under:
"It varies in man from 2.5-6 hours. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. The fatty food delays the emptying time, while liquids leave the stomach immediately after ingestion. Sometimes, the emptying of the stomach remains in abeyance for a long time in states of profound shock and coma. Undigested food has been seen in the stomach of persons who received severe head injuries, soon after their meal and died within twelve to twenty-four hours afterwards. In one case, the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours, without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a long time after death. The presence of tablets or parts of capsules may be significant.
The average urine volume in a healthy adult is about 1.5 litre/day. It varies from 600 to 2500 ml daily. It is dependent on the:
* intake of water;
* type of food;
* environmental temperature; and * physical and mental state of the person." [emphasis supplied]
23. As such the above excerpt would undoubtedly and unambiguously highlighted that the opinion of the Doctor was not supported by all those material circumstances. But, on the other hand, the observation of the Doctor relating to the injuries and her general opinion about the time of the death so to say, which occurred 28 to 30 hours, do tally with the narration of the eyewitnesses and in such a case, mere inference of the Doctor with reference to undigested particles could not torpedo the entire prosecution case. Had the Doctor with reference to those various factors arrived at the opinion about time of consumption of rice, the matter would be different. Here, simply the Doctor opined as though the food might have been taken 2 to 3 hours anterior to the death of the person. One other important factor also should be considered.
P.W.1 and P.W.5 coupled with the version in Ex.P.1, would state that in fact, while the deceased was passing stools, the occurrence took place at 05.30 a.m, and as such the timing also clearly tallies with the narration. Throwing to winds the common sense, a criminal case cannot be adjudicated and that would amount to misdirecting oneself.
24. The trial Court's discussion relating to the delay in discharging the F.I.R and thereby drawing adverse inference as against the F.I.R is against law as well as the natural course of events and thereby the trial Court was perverse in its approach in arriving at such a conclusion. As has been already highlighted above, the occurrence took place at 05.30 a.m., on 12.05.1992 and the F.I.R was registered on the same day at 08.00 hrs and the Magistrate received the F.I.R on the same day at 02.00 p.m.
25. P.W.9, Abdul Rahman, the Police Constable Grade - I, would expound and explain that he took Ex.P.1 complaint and Ex.P.15 the printed F.I.R to the Magistrate Court at 10.00 or 10.15 a.m., itself and by that time, the Magistrate Court's sitting commenced. When he approached the Head Clerk, he informed P.W.9 to hand it over to the Magistrate after the sitting hour was over as it happened to be an Express F.I.R. As such the trial Court ought to have accepted the evidence of P.W.9. Furthermore, absolutely there is no delay at all in registering the F.I.R and dispatching it. The admitted fact remains that the said Kallidaikurichi Police Station is situated at a distance which could be covered by cycle in 45 mts and P.W.9 would state that he covered the said distance by cycle only. As such the finding of the trial Court that there was a delay in discharging the F.I.R, is nothing but the one based on an out and out wrong approach. In this connection, the decision of the Honourable Apex Court in Venkategowda & Ors. vs. State of Karnataka reported in 2006 (4) Crimes 338 (SC) could fruitfully be cited. Certain excerpts from it, would run thus:
"14. In Peddireddy's case (Peddireddy Subbareddi and others v. State of Andhra Pradesh, AIR 1991 SC 1356), this Court, on the scrutiny of the evidence, found that the testimony of sole witness was clouded with strong suspicion and as the FIR was lodged by a delay of 15 hours, and in such circumstances, the false implication of the accused in the said case could not be completely ruled out.
15. In Amar Singh's case (Amar Singh v. Balwinder Singh and others, (2003) 2 SCC 518), it is held that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. Further, it is observed that it necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this, a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc., have to be taken into consideration and that there is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.
16. .... It is settled law that the delay in lodging the FIR will not be fatal in every case if the ocular version of the eyewitnesses is reliable and trustworthy. The prosecution has explained the reason of the delay and as the testimony of the injured witnesses was found credible by the High Court, the delay in lodging of the complaint and FIR will not be fatal to the prosecution case."
26. The trial Court wrongly understood that since A.2 before the Magistrate declined to give any confession under Section 164 Cr.P.C, the second accused's admissible portion of the confession as evidenced by Ex.P.8 dated 13.05.1992 and the consequent recoveries of M.Os.1 and 2 under Ex.P.9 mahazar and M.Os.8 and 9 lungies of A.1 and A.2 respectively under cover of Ex.P.10, are doubtful. Simply because, A.2 when he was examined on 18.05.1992, by the Magistrate, declined to give confession, it would not date back and make Ex.P.8, the admissible portion of the confession of A.2 which led to the discovery of M.Os.1 and 2 as inadmissible in evidence. As such the approach of the trial Court is totally against the law.
27. The learned Counsel for the respondents/accused would, by drawing our attention to the answers given by the accused during 313 examination, try to point out that the police themselves were not sure as to who committed the murder even up to the evening of 12th May 1992. It is just and necessary to extract hereunder the answers given by the accused. While answering the questions put under Section 313 of Code of Criminal Procedure, the version of A.2 would run thus:
"nfs;tp :'31. ckJ jug;gpy; tHf;F trpakhf VnjDk; brhy;ypf; bfhs;s ntz;Lkh? gjpy; ' ehd; cYg;gog;ghiw fpuhkj;jpw;F gpiHg;g[f;fhf te;jtd;. vdf;Fk; ,e;j nf]#f;Fk;; ve;jtpj rk;ge;jKk;; fpilahJ. Rk;gtjpdj;jd;W fhiyapypUe;J khiy 5 kzp tiu ehd; vd; tPl;oy; jhd; ,Ue;njd;. md;W fhiy 10 kzpf;F Ch;f;Tl;lk; vy;yhk; nghl;lhh;fs;. nghyP]#k; mg;nghJ Rw;wp epd;wpUe;jdh;. 2-00 kzp tiu Cuhh; tprhhpj;J ghh;j;jhh;fs;. bfhiy bra;jJ ahbud;nw bjhpatpy;iy. me;j rkaj;jpy; ehd; me;j Tl;lj;jpy; jhd; ,Ue;njd;. gpwF Tl;lk; fise;J xUj;jh; xUj;juhf nghFk; nghJ> ehDk; tPl;Lf;F ngha;tpl;nld;. ehd; nghd gpwF Chpy; xUth; jtwhky; ];nl\Df;F tuntz;Lk; vd;W brhy;ypapUf;fpwhh;fs;. mJ bjhpahky; ehd; tPl;onyna ,Ue;Jtpl;nld;. mjd;gpwF rhae;juk; 5 kzpf;F ngr;rpf;fz;Z> MWKfk;> fzgjp Mfpnahiu nghyPrhh; Tg;gpl;Lg; nghdhh;fs;. gpwF vd;id ];nl\dpy; itj;J tpl;lhh;fs;. mjw;F Kd;ng> md;W fhiyapy; btys; ldhr; nrh;e;j K:d;W ngiu re;njfj;jpd; nghpy; moj;J milj;J itj;jpUe;jhh;fs;. gpwF ,e;j tHf;fpy; vd;id bgha;ahf nghl;L ,Uf;fpwhh;fs;. ehd; nrud; khnjhtp nfhh;l;oy; Vw;fdnt xU thf;FK:yk; je;Js;nsd;."
28. During cross-examination, P.W.1 would depose as under:
"kUkfid btl;oaJ ahh; vd;W bjhpahjjhy; Ch;f;Tl;lk; ele;jjhf brhy;tJ rhpay;y. Ch;f;Tl;lj;jpy; rptd;> nrJghz;o> rz;Kfk;> Fknurd; Mfpa ehd;F ngiua[k; Tg;gpl;L tprhhpj;jhh;fsh vd;W brhy;tJ bjhpahJ."
29. The fact remains that even by 08.00 a.m., itself on 12.05.1992, the F.I.R was registered as against A.1 and A.2 and admittedly, the Magistrate received the complaint and the F.I.R at 02.00 p.m., at 12.05.1992 and in such a case, the aforesaid plea of the accused is nothing but an utter falsehood. We are fully aware of the fact that the prosecution cannot gain any strength from the falsity of the defence plea. But, it is a trait proposition that once the accused has come forward with a specific plea, it is open for the prosecution as well as the Court to comment upon its falsity that there was no genuineness in cross-examining the witnesses.
30. The learned Counsel for the respondents/accused would highlight that as per Ex.P.13, the report furnished by the Forensic Laboratory that blood was not traced from the billhooks as well as from the lungies of A.1 and A.2 and such a fact cannot be taken as fatal to the prosecution case for the reason that billhooks were recovered from a hidden place under the ground. Even though in the recovery mahazar relating to Exs.P.9 and P.10, it is found stated that M.Os.1, 2, 8 and 9 were stained with blood, the Forensic Laboratory gave an opinion that no blood was traced and that discrepancy would not in any way cut at the root of the prosecution case when the evidence as discussed supra are cogent and convincing.
31. P.W.3, David, is the one who photographed the dead body. M.O.4 is the series of the photographs. M.O.5 is the negatives concerned and there is no controversy over it. The sketch Ex.P.16 would clearly highlight the houses in which the deceased and the accused lived respectively before the incident and also about the place of occurrence. Ex.P.6 the observation mahazar coupled with Ex.P.16 the sketch gives a picturesque description about the said hamlet and the place of occurrence. P.W.6 Ramani, the Village Administrative Officer would speak about the preparation of observation mahazar Ex.P.6, and the recovery of the material objects from the scene of crime.
32. P.W.7 Sankaralingam, the Head Clerk of the Magistrate Court would speak about Ex.P.11, P.12, P.13 and P.14 as to how the material objects were sent for obtaining expert opinion. He would also state that on 12.05.1992, the complaint and the F.I.R were received by the Magistrate and his evidence in no way runs counter to the evidence of P.W.9 the Constable concerned. P.W.8, one another constable would speak about the fact of M.Os.10 and 11 having been recovered from the dead body and it is a formal piece of evidence. P.W.11, the Investigating Officer concerned, spoke about the investigation conducted. As such in view of the aforesaid ratiocination and the reasons adhered to by us in analysing the evidence on record, we have no hesitation to come to the conclusion that the trial Court's judgment is fraught with perversity and the acquittal of A.1 and A.2 was most undeserving.
33. The legal adage is that "it is better ten guilty persons should escape than one innocent man should suffer".- The first mention of the idea is to be found in Fortesque's De Laudibus. Two hundred years later, Hale in his Pleas of the Crown restated the aphorism though in a slightly different form. In 1823, Mr.Justice Holroyd stated the maxim in its present form, and in this form, it is reported by Sir Gregory Lewin in his Crown Cases. Though, as the Law Times had humourously observed, the number of guilty persons who should escape rather than that one innocent should suffer has varied from time to time, and as Mr.C.K.Allen in his Legal Duties and other Essays in Jurisprudence has observed, "ideally the acquittal of ten guilty persons in exactly ten times as great a failure of justice as the conviction of one innocent person, the maxim embodies in a striking way the sanctity of innocence and emphasizes the caution which criminal Courts, should exercise before coming to a conclusion adverse to an accused person." [emphasis supplied] In this connection, the decision of the Honourable Apex Court in Sucha Singh v. State of Punjab reported in (2003) 7 Supreme Court Cases 643 could fruitfully be cited. Certain excerpts from it, would run thus:
"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh) The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P v. Ashok Kumar Srivastava) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.,)] Vague hunches cannot take the place of judicial evaluation.
"A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." [Per Viscount Simon in Stirland v. Director of Public Prosecution quoted in State of U.P v. Anil Singh (SCC p. 692, para 17.)] Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahabrao Bobade v. State of Maharastra (SCR pp. 492-
93):(SCC p. 799, para6) "The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape.
The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond stretched morbidly to embrace every hunch, hesitancy and degree of doubt. .. The evil of acquitting a guilty person light- heartedly as a learned author (Glanville Williams in 'Proof of Guilt') has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltness. ...'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...'"
22. The position was against illuminatingly highlighted in State of U.P v. Krishna Gopal. Similar view was also expressed in Gangadhar Behera v. State of Orissa."
34. D.W.1, Kasiviswanathan, the Village Administrative Officer, was examined for proving in a round about way that the evidence of P.W.1 and P.W.5 are not true, because at the relevant time, there were no plantain trees cultivated in P.W.1's land as claimed by him. D.W.1 categorically stated that he did not know whether the plantain trees were standing in the land of P.W.1. For this purpose absolutely, his examination was irrelevant. He during cross- examination went on stating about the cultivation of paddy in P.W.1's land during the month of July to October as per Ex.D.1 adangal extract. The occurrence took place during the month of May and D.W.1 also stated that he is not aware whether the plantain trees were growing in that field. This is a good example as to how the defence side misdirected itself by examining D.W.1 and no more elaboration is required in this regard to establish that the evidence of D.W.1 is totally irrelevant in this case.
35. In this connection, the dictum of the Honourable Apex Court in Haji Kahn v. State of U.P reported in (2005) 13 Supreme Court Cases 353 could fruitfully be cited which would posit the proposition to the effect that where two views are possible, the High Court should not interfere only because it feels that sitting as a Sessions Court it would have preferred a contrary view. An excerpt from it, would run thus:
"7. On the first question, the submission of the learned Senior Counsel is based on the principles enunciated by this Court, that in cases where two views are possible, the High Court should not interfere because it feels that sitting at the Sessions Court it would have preferred conviction. The High Court should consider every reason given by the Sessions Court in favour of acquittal and then dislodge them. We are in complete agreement with the principles laid down by this Court in a number of decisions but at the same time we may mention that they do not take away the powers and jurisdiction of the appellate Court to reappraise the evidence in cases where it feels that the Sessions Court has committed an error in its approach, application of law and also appreciation of evidence on record or when the Court has misread or not read the evidence placed before it. It cannot be said that the appellate Court does not have the power to reverse the order of the Sessions Court when it feels and finds that there is direct evidence to prove to the contrary on record, otherwise it would defeat the entire purpose and the intent of providing appeal against the judgment of the Sessions Judge."
36. The dictum in Peerappa v. State of Karnataka reported in (2005) 12 Supreme Court Cases 461 would also posit the same proposition. An excerpt from it, would run thus:
"13.On an anxious consideration of the contentions in the light of the evidence on record and the findings of the trial Court, we are of the view that the High Court ought not to have interfered with the order of acquittal. In this regard, we may recall the observations made by R.C.Lahoti, J. (as His Lordship then was), speaking for a three-Judge Bench in Kashiram v. State of M.P. It was observed thus: (SCC p. 71) "Though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial Court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is - if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial Court its view would have been one of recording a conviction. It follows as a necessary corollary that it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial Court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court."
That obligation has not been discharged by the High Court in the instant case. All the reasons given by the trial Court while appreciating the evidence have not been dealt with by the High Court."
37. The trial Court in page No.27 of its judgment would hold that as per the evidence of P.W.5 and P.W.6 on 13.05.1992 even earlier to 08.00 p.m., at which the Investigating Officer claimed to have arrested the accused, they saw the accused in police custody and that the trial Court had suspicion over the prosecution case.
38. Hence, it is just and necessary to analyse the evidence relating to it. P.W.6, Ramani, the Village Administrative Officer concerned, in his deposition inter alia would state that on 13.05.1992, the police arrested both the accused near Pottal Padalingasamy temple and thereupon A.2 gave confession voluntarily which led to the recovery of M.Os.1 and 2 as revealed by Ex.P.9 mahazar at about 10.00 p.m., on 13.05.1992. During cross-examination, it was elicited out from the evidence of P.W.6 that the Investigating Officer on 13.05.1992 requested the Village Administrative Officer to accompany him at 07.00 p.m. The trial Court referred to the remand report of the accused and gave a finding that it is found mentioned therein that the accused was arrested at 08.00 p.m., on 13.05.1992. Absolutely there is no contradiction between the evidence of P.W.6 and the remand report referred to in the judgment of the trial Court. In fact, the remand report was not marked and P.W.11, the Inspector of Police was also not examined pertinently and particularly on that aspect.
39. The trial Court assumed and presumed as though P.W.6 stated that the arrest was at 07.00 p.m., on 13.05.1992. But, that is not the evidence of P.W.6 who only stated that the Investigating Officer called him at 07.00 p.m., so as to accompany him and they proceeded to the place of arrest near the said temple and thereafter the police arrested A.1 and A.2 in his presence. Correspondingly P.W.11, the Investigating Officer would narrate that on receipt of information that both the accused were found near the temple, he took the Village Administrative Officer and went to the spot and thereafter alone both the accused were arrested.
40. It is therefore clear that absolutely there is nothing to show that P.W.6 gave any contradictory version to what was found stated in the remand report that the accused were arrested at 08.00 p.m. The trial Court erroneously understood as though P.W.6 stated that the accused were arrested at 07.00 p.m. This is actually a glaring mistake committed by the trial Court which proceeded with the presupposed notion to acquit the accused by picking holes in the prosecution case.
41. The Village Administrative Officer P.W.6 detailed as to what were all performed in his presence so to say about the confession made by A.2 and consequent recoveries and relevant mahazars referred to above. The trial Court also referred to the evidence of P.W.5 who during cross-examination of A.2 would state that as though on hearing the news, he went to the police station on the next day of the occurrence at 11.00 a.m., and saw the accused. The core question arises as to whether this isolated answer given by P.W.5 relating to the fact of he having seen the accused at 11.00 a.m., in the police custody on the next day of the occurrence would be fatal to the case of the prosecution. In fact, P.W.5 is the villager and even he did not specify about the date of occurrence in his deposition. But, he would only narrate that six years before the occurrence took place and thereafter he described in detail about what was in his mind. To the risk of repetition, we would like to highlight that on 04.08.1998, he deposed for the first time before the Court about the fact that at 11.00 p.m., on the next day of occurrence, he saw the accused in police custody. The trial Court without considering this aspect of the time gap between the date of occurrence and the date of deposition before the Court, unduly gave unwarranted importance to such isolated answer relating to the time at which he saw the accused in police custody on the next day of occurrence. This fact would further show that P.W.5 was a disinterested witness and the trial Court ought to have given due allowance while analysing the evidence of P.W.5 relating to the time at which he saw the accused in police custody that too when he deposed before the Court more than six years after the occurrence. However, P.W.6 clearly spoke about the details relating to the arrest and the admissible portion of the confession as well as the recoveries.
42. In this connection, there is no question of two views available at all for the High Court to refrain from reversing the judgment of the acquittal. Undoubtedly, the murder has committed in pursuance of the common intention of A.1 and A.2 and accordingly, these points are answered in favour of the prosecution and as against the accused.
Point No:(iii)
43. In view of the ratiocination and reasons adhered to, for deciding the aforesaid points, it is held that the trial Court was carried away by unimportant, insignificant and pococurante details and arrived at the wrong conclusion and the judgment of the trial Court is liable to be reversed.
44. In the result, the judgment of acquittal is reversed and A.1 and A.2 are found guilty of the offences under Section 302 read with Section 34 I.P.C in view of having committed the murder of Ramaiah in pursuance of their common intention. This is not a rarest of rare case which warrants death penalty and accordingly, as against A.1 and A.2, the sentence of life imprisonment is imposed on each of them and they are also ordered to pay a fine of Rs.5,000/- each in default to undergo rigorous imprisonment for six months. The trial Court is directed to issue non-bailable warrant as against both the accused so as to commit them to jail to undergo the sentences and it shall also take steps to collect the fine amounts.
To:
1.The Principal Sessions Judge, Tirunelveli.
2.II-Additional Sessions Judge, Tiruenlveli.
3.The Inspector of Police, Kallidaikurichi, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.