Madras High Court
Murugan vs State on 6 March, 2012
Author: P.Devadass
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/03/2012 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR.JUSTICE P.DEVADASS Criminal Appeal (MD) No.388 of 2008 and Criminal Appeal (MD) No.394 of 2008 Murugan S/o. Raman @ Sevittu Raman ... Appellant in Crl.A.(MD) No.388 of 2008 and Murugan S/o. Senthurpadi ... Appellant in Crl.A.(MD) No.394 of 2008 Vs State rep. By The Inspector of Police Thirupullani Police Station Ramanathapuram District. ... Respondent in both the appeals Common Prayer in both the appeals Appeals filed under Section 374 of Criminal Procedure Code to call for the records in S.C.No.61 of 2006 dated 8.8.2008 on the file of the Principal Sessions Judge, Ramanathapuram and to set aside the same. !For Appellant in Crl.A.(MD) No.388 of 2008 ... Mr.M.Subash Babu For Appellant in Crl.A.(MD) No.394 of 2008 ... Mr.T.A.Ebenezer ^For respondent ... Mr.K.S.Duraipandian Addl Public Prosecutor - - - - - - - :COMMON JUDGMENT
P.DEVADASS,J.
1. Since A.1 Murugan, son of Raman @ Sevittu Raman (Appellant in Criminal Appeal (MD) No.388 of 2008) and A.2 Murugan, son of Senthur Pandi (Appellant in Criminal Appeal (MD) No.394 of 2008) were tried together in S.C.No.61 of 2006, before the Principal Sessions Judge, Ramanathapuram and were convicted and sentenced on 8.8.2008, common arguments were heard and thus, this common judgment is being rendered.
2. In the said Court, both were found guilty under Section 302 r/w. 34 IPC and each were sentenced to life and fined Rs.1,000/-, in default, to undergo one year rigorous imprisonment.
3. In the trial Court, A.1, A.2 and A.3 (Dinesh Kumar @ Dinesh) were proceeded with for the death of one Muthulakshmi. Since A.3 had absconded, the case against him was separated in S.C.No.110 of 2007. On securing him, subsequently, he was tried separately and was convicted and sentenced. However, he has not appealed.
4. Now, in these appeals, we are concerned with A.1 and A.2 alone. For convenience sake, through out this judgment, we shall call them as A.1 and A.2.
5. The case of the prosecution as told in the trial Court, may briefly be restated here as under:-
(i). Muthulakshmi (deceased) and P.W.5 Lakshmanan have four sons viz., Ganesh Kumar (P.W.1), Sankar Ganesh (P.W.2), Lingakumar and Jagan. In 2005, they were about 14, 11, 10 and 7 years old respectively. They belong to Vadakupudukudiyiruppu, near Periyapattanam, in Ramanathapuram District.
(ii). They were residing in their own house. P.W.5 is a palmirah-climber.
Muthulakshmi's brother P.W.4 Selvaraj is residing in the nearby Sethunagar.
(iii). On 3.1.2005, P.W.5 left the house for Pachayapuram, near Vembar to sharpen his big bill-hook, which he uses in his profession.
(iv). On 4.1.2005, at about 9 p.m., A.1 came to their house, asked chit amount from Muthulakshmi. She chided him for having come at that odd hours and drove him away. P.Ws.1 and 2 seen this. Thereafter, P.Ws.1 and 2 slept in one room. Their mother and two other brothers slept in the other room.
(v). In the mid-night, at about 12.30 a.m., in the front side of their house, P.Ws.1 and 2 heard shriek of their mother. They came out. Seen A.2 and A.3 holding their mother tightly. A.3 was wielding M.O.1 bill-hook in another hand. A.1 shouted at her. P.Ws.1 and 2 went near them, pleaded them to leave their mother. But A.3 drove them away showing M.O.1 bill-hook. In these circumstances, they hide behind the kitchen shed. A.1 to A.3, took their mother, near the fence, situate in between the kitchen shed and the fence.
(vi). Muthulakshmi shouted at them that she will expose them to the Panchayat and also to the Police. They pushed her down. A.2 and A.3 caught hold of her, A.1 obtained M.O.1 bill-hook from A.3, cut her on her neck, A.2 snatched M.O.1 from A.1, cut her on her right shoulder and A.3 snatched M.O.1 from A.2 and cut her on her right forearm. She died on the spot. P.Ws.1 and 2 seen the entire occurrence.
(vii). P.W.1 sent P.W.2 to Sethunagar to bring their Uncle P.W.4 Selvaraj. About 15 minutes, P.W.4 came in his bike. On seeing him, A.1 ran towards the west with M.O.1. A.2 and A.3 followed him. P.W.4 seen the dead body of his sister.
(viii). P.W.4 over phone informed P.W.5 about the occurrence. He replied him that he will be coming in the early morning and he came at about 6 a.m. Seen the dead body of his wife.
(ix). On 5.1.2005, at about 8.30 a.m., at Tirupulani Police Station, P.W.1 gave Ex.P.1 complaint to P.W.9 Soundarapandian, Head Constable. He registered a case in Crime No.7 of 2005 under Section 302 IPC. He sent Ex.P.12 F.I.R through P.W.12 Rathinavel, Head Constable to the Court.
(x). On receipt of a copy of F.I.R, P.W.14 Shanmugam, Inspector, Keelakarai, took up his investigation. He visited the scene place. In the presence of P.Ws.6 and 11, Thirumurthi and Baluchamy, Village Assistants, Periyapattinam, prepared Ex.P.3 observation mahazar. Drew Ex.P.13 rough sketch. Recovered blood-stained sand (M.O.2), plain-sand (M.O.3) and two blood stained palmirah leaves (M.O.4) under Ex.P.4 mahazar. In the presence of Panchayatdhars, he held inquest over the dead body (Ex.P.14 inquest report). Sent the dead body through P.W.13 Constable Kuppupitchai to Govt. Hospital, Ramanathapuram for conducting autopsy. P.W.14 examined P.Ws.1, 2 and other material witnesses and recorded their statements.
(xi). At about 9.30 a.m., in Pachaiyappan's Coconut thoppu, in Regunathapuram, P.W.14 arrested A.1 to A.3. In the presence of P.Ws.6 and 11, A.1 gave Ex.P.5 confession and from the thope, he produced blood-stained M.O.1 bill-hook. P.W.14 seized it under Ex.P.6 mahazar.
(xii). At about 2 p.m., at the Govt. Hospital, Ramanathapuram, P.W.3 Dr.Vadivel performed autopsy on the dead body of Muthulakshmi and noticed the following:-
(1). A lacerated injury of size 8 cms x 3 cms upto muscle depth present middle of right shoulder.
(2). A lacerated injury of 12 cms x 5 cms width exposing the deeper part of neck, on left side lower neck with completely trachea and esophagus and great vessels of neck on left side, left side stermastoid muscles divided at its lower part. Medial end of this wound from a pit 2 cms to the right of midline of neck at lower part of neck, from obliquely and ends of a point 8 cms postierly uniform to extend ear with tail ends on both ends. Edge are sharp.
(3). A lacerated injury of 4 cms x 2 cms upto muscle depth. Edge are sharp over right forearm lower part.
(xiii). P.W.3 opined that she would have died due to haemorrhage shock and injury prior to autopsy to vital organs trachea and esophagus and (torn) vessel of neck.
(xiv). P.W.13 recovered M.Os.3, 5 to 8 blood stained saree, petticoat, inner garment and bra from her dead body and handed over them to P.W.14.
(xv). On 6.1.2005, P.W.14 produced the accused to the Court for judicial custody. On his requisition, under Ex.P.11 the Court sent the case-properties to the chemical lab. P.W.7 Elangovan, Scientific Assistant analysed them. He found similar human blood in M.Os.1, 2 and 4 to 8 (Exs.P.7 to P.9 scientific reports).
(xvi). P.W.3 opined that those injuries are possible by a weapon like M.O.1. On P.W.14's transfer, P.W.15 Senguttuvan, Inspector, took up further investigation. Perused the case records, completed the investigation and filed the Final Report for offences under Section 302 r/w. 34 IPC as against the accused.
6. During trial, since A.3 Dineshkumar @ Dinesh, absconded, the case against him has been separated from the mother case, in S.C.No.110 of 2007. A.1 and A.2 took up their trial in S.C.No.61 of 2006.
7. A.1 and A.2 were charged under Section 302 r/w. 34 IPC.
8. To substantiate the charges, prosecution examined P.Ws.1 to 15, marked Exs.P.1 to P.14 and M.Os.1 to 8.
9. When the accused were examined under Section 313 Cr.P.C., they have denied their complicity in this case. They have stated that on the occurrence day, a sniffer dog came to the spot, but it did not catch anyone. In the village, there exists two rival groups viz., Adilingam group and Ayyamperumal group. P.Ws.4 and 5 belongs to Adilingam group. On the instigation of Adilingam group, the accused, who belongs to Ayyaperumal group have been implicated in this case.
10. According to Mr.M.Subash Babu, learned counsel for A.1, there are very many infirmities in the prosecution case, prosecution has not established its case beyond all reasonable doubts.
11. Elaborating his submissions, the learned counsel submitted as under:-
(i). In the village, there are two inimical groups viz., Adilingam group and Ayamperumal group. P.Ws.4 and 5 belong to Adilingam group. Accused belong to Ayamperumal group. On the pressure of Adilingam, P.Ws.4 and 5 have implicated the accused in this case.
(ii). P.Ws.1, 2, 4 and 5 are closely related to the deceased. They are highly interested witnesses. It is highly risky to act upon their evidence.
(iii). P.Ws.1 and 2 are young boys, easily prone to tutoring and dancing to the tunes of others. P.W.1 revealing full details of the prosecution case with minute details in Ex.P.1 complaint also evidences this. In the circumstances, P.Ws.1 and 2 cannot be relied on.
(iv). No independent witness has been examined. Shanthi, who is residing on the west of the scene-house has been avoided from the witness box.
(v). In the house, at the occurrence time, two other sons of the deceased, who have slept with the deceased were not examined.
(vi). The occurrence is stated to have been taken place at mid night.
There was complete darkness. There was no light in the house. Electricity Board staff were not examined to show that at about that time, the street lights were burning.
(vii). Actually, there is no pial in the house. In Ex.P.13 rough sketch also no pial has been shown. So, the evidence of P.W.1 that A.3 picked up M.O.1 bill-hook from their pial, cannot be believed.
(viii). The evidence of P.W.11 is that from the rear side of the kitchen, one cannot view the dead body lying near the fence. So, P.Ws.1 and 2 could not have viewed the occurrence from behind the kitchen.
(ix). According to P.W.14, the Investigation Officer M.O.1 bill-hook has been recovered based on the disclosure statement of A.1. However, during trial, P.W.11, the recovery witness pointed out A.2. So, the Section 27 of the Evidence Act Recovery is false.
(x). It is highly unbelievable that till P.W.4 visited, A.1 to A.3 remained in the scene place.
(xi). There is inconsistency as between P.Ws.1, 4 and 14 as to the route through which the accused have escaped.
(xii). The deceased had her food at about 8.30 p.m. On the next day, at about 2 p.m., during post-mortem, P.W.3 found rice in her stomach. So, the time of death is doubtful. Consequently, the occurrence time is doubtful.
(xiii). In Ex.P.14 inquest report, it is stated that the deceased was an immoral lady. P.W.14 Investigation Officer also stated so. Hence, possibility of some of her aggrieved client would have killed her, cannot be ruled out.
(xiv). P.W.14 found that as against the deceased and P.W.5, there were lot of prohibition cases. So, they were in illegal business. Some of their rivals in the illegal business would have also killed her.
(xv). There was 8 hours delay in lodging the FIR. There is also delay in sending it to the Court. There is no proper explanation for the unreasonable delay.
(xvi). P.W.14 employed sniffer dog. Since accused were named in the FIR, there is no need for this. It shows that her killers were not known, only subsequently, in the delayed FIR, the accused have been implicated.
12. Mr.T.A.Ebenezer, learned counsel for A.2, besides reiterating the submissions of the learned counsel for A.1 argued as under:
(i). There is inconsistency in the evidence of P.Ws.1, 4, 11 and 14 as to the clothes that they have seen on the dead body of the deceased.
(ii). In his evidence, P.W.1 had made improvements.
(iii). The blood stained clothes of the accused were not recovered.
(iv). The accused are very young. Mercy may be shown to them.
13. According to Mr.K.S.Duraipandian, learned Additional Public Prosecutor, the case is based on the evidence of eye witnesses. There are further oral, documentary evidence and material objects strengthening the prosecution case. The evidence of eye witnesses is cogent, clear and convincing. Based on their evidence, conviction can be sustained. The charges against the accused were clearly proved. They were sentenced accordingly.
14. We have anxiously considered the rival submissions as well as the evidence adduced.
15. With due care and caution, we have approached the evidence of P.Ws.1, 2, 4, 5 and also other evidences and materials placed before us. We have also gone through the findings recorded by the trial Court.
16. P.W.5 Lakshmanan and Muthulakshmi (deceased) are spouses. They have four sons. They are Ganesh Kumar (P.W.1), Shankar Ganesh (P.W.2), Lingakumar and Jagan. At the beginning of 2005, the boys were 14, 11, 10 and 7 years old respectively. P.W.5 is a Palmirah climber. They were residing in their own house situate in Periyapattinam Vadakupudhu Kudiyiruppu in Ramanathapuram District. In the nearby Sethu nagar, Muthulakshmi's brother P.W.4 Selvaraj is residing.
17. On 4.1.2005, at about 12.30 a.m., in the midnight, Muthulakshmi was found dead with her neck cut and there were injuries on her right shoulder and right forearm. There is no doubt that she died of homicidal violence.
18. A.1, A.2 and accused Dinesh Kumar @ Dinesh were accused of killing her.
19. This case is based on the evidence of eye witnesses. They are P.Ws.1 and 2 Ganesh Kumar and Shankar Ganesh. After occurrence witnesses are P.Ws.4 and 5, namely, Selvaraj and Lakshmanan. P.Ws.1, 2, 4 and 5 are closely related to the deceased.
20. It has been contended by the learned counsels for the appellants that since they are closely related to the deceased, they are highly interested witnesses and they should not be believed.
21. In SARWAN SINGH v. STATE OF PUNJAB, [1976 (4) SCC 369], the Hon'ble Apex Court, while considering the evidence of an interested witness held as follows:
"10. ? it is not the law that the evidence of an interested witness should be equated with that of a tainted [witness] or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of the interested [witness has] a ring of truth such evidence could be relied upon even without corroboration."
22. The fact of being a relative cannot by itself discredit the evidence. In the above said case, the witness relied on by the prosecution was the brother of the wife of the deceased and was living with the deceased for quite a few years. In the circumstances, in SARWAN SINGH (supra) at page 379, the Hon'ble Supreme Court held as follows.
"16. ? But that by itself is not a ground to discredit the testimony of this witness, if it is otherwise found to be consistent and true."
23. In BALRAJE v. STATE OF MAHARASHTRA [(2010) 6 SCC 673], the Hon'ble Supreme Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, the Hon'ble Apex Court held as under.
"30. ? if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
24. In PRAHALAD PATEL V. STATE OF M.P. [(2011) 4 SCC 262], the Hon'ble Supreme Court held that: (SCC p. 265) "15. ? Though PWs 2 and 7 are brothers of the deceased, relationship is not a factor to affect credibility of a witness. In a series of decisions this Court has accepted the above principle (vide Israr v. State of U.P., (2005) 9 SCC 616 and S. Sudershan Reddy v. State of A.P., (2006) 10 SCC 163)."
25. In DALIP SINGH AND OTHERS Vs. STATE OF PUNJAB [AIR 1953 SC 364], it has been laid down as under:-
"Ordinarily a close relation 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 a 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."
26. In ARUMUGAM Vs. STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU (2009 I MLJ (CRL.) 48 (SC) the Hon'ble Supreme Court opined that the plea relating to interested witness is a regular feature in almost every criminal trial and observed as under:
"Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
27. It has been contended by the learned counsels for the appellants that Shanthi, the neighbour and the other two sons of the deceased were not examined, they were kept out of the witness-box, because, if examined, their evidence will expose the weakness of the prosecution case.
28. In this connection, it is relevant to note the following observations of the Hon'ble Apex Court made in MAHESH Vs. STATE OF M.P. [2011 (3) SCC (Cri) 783]:
"There is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses who were examined were relatives of the deceased and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so as to see that the actual guilty persons are convicted."
29. Shanthi, their neighbour resides on the west of their house. She did not witness the occurrence. She is not an eye witness. Lingakumar and Jagan were then aged about 11 and 7 years respectively. They were sleeping along with their mother in another room. They did not witness the occurrence. When P.W.4 visited the scene place, Jagan was sleeping in the room. One boy came out and was weeping. These two boys have not witnessed the occurrence. So, Shanthi, Lingakumar and Jagan are not material witnesses in this case. In these circumstances, their examination in the Court will be superfluous except bulging the deposition of witnesses. In the facts and circumstances, non-examination of those nonmaterial witnesses is not a material aspect in this case.
30. When the occurrence had taken place, P.Ws.1 and 2 were aged about 14 and 11 years respectively. They were studying in IX and VII Standards respectively. The occurrence was on the mid night of 4/5.1.2005. Nearly, after three years, on 19.2.2008, the boys were examined in the trial Court. By that time, they were 17 years and 14 years old. They were also studying +2 and X Standards respectively. They have grown up. They had full understanding and mental faculty.
31. As per Section 118 of the Indian Evidence Act, 1872, even persons of tender age are competent to testify, if they possess the understanding and exhibited their understanding capacity by their rational answers to the questions posed to them to test their competency.
32. The trial Judge enquired them about their competency to depose and he was fully satisfied about their competency to depose. In such circumstances, merely because P.Ws.1 and 2 are young school going boys, their evidence cannot be stated to be tainted. But, at the same time, they being boys and also lost their beloved mother in the gory incident, their evidence is required to be approached with much care and caution, which course we wish to adopt in this case.
33. It is the evidence of P.W.1 Ganesh Kumar that on the midnight of 4.1.2005, from their tiled-house, A.1, A.2 and accused Dinesh Kumar took their mother forcibly to near the fence, situate on the southern side of their house, his mother had fallen down, A.2 caught hold of her leg, A.3 caught hold of her hand, A.1 obtained M.O.1 bill-hook from A.3, cut her on her neck, A.2 obtained M.O.1 from A.1 and cut her on her right shoulder and A.3 obtained M.O.1 from A.2 and cut her on her right fore arm. P.W.2 Shankar Ganesh also corroborated his brother/P.W.1. P.W.2 had also narrated the overtact of each accused. Their mother died on the spot. P.Ws.1 and 2 have stated that they have viewed the whole occurrence hiding behind the kitchen shed.
34. In the house, P.W.5 Lakshmanan, his wife Muthulakshmi (deceased) and their four sons resided. On 3.1.2005, P.W.5 left the house for Pachayapuram near Vembar to sharpen his instrument of profession/big bill-hook. Till 5.1.2005 morning, P.W.5 did not return home. During the occurrence time, his wife and his sons alone were in the house. In the tiled house, there are two rooms. The evidence of P.Ws.1 and 2 shows that P.Ws.1 and 2 slept in a room, while their brothers Lingakumar and Jagan slept with their mother in the other room.
35. The tiled house of the deceased is situate in Vadakukudiyiruppu (see Ex.P.13 rough sketch). It is facing south, abutting a mud-road, there is a fence on east-west direction, within the campus this tiled-house situate, from about 100 feet, there is a kitchen shed. From there, it is at a gap of 50 feet. It is the evidence of P.Ws.1 and 2 that the accused have forcibly took their mother to near this fence.
36. From the cross-examination of P.W.1, it is seen that at that time, in the front side of their tiled house, a light was burning. There are two E.B light posts in the street, near the fence. Near this place, namely, in between, the kitchen shed and the fence, the occurrence had taken place. The lights in the E.B posts were also burning.
37. It has been contended by the learned counsels for the appellants that in Ex.P.13 rough sketch, in the tiled house, no bulb has been shown. Further, E.B staff has not been examined to show that at that time there was light in the E.B posts.
38. Ex.P.13 is a rough sketch. It is not a building plan. We cannot expect all the minute details in a rough sketch. Burning of the light has been spoken to by witnesses. In the facts and circumstances, it cannot be said that in the absence of evidence of E.B staff that cannot be believed.
39. It is in the evidence of P.Ws.1 and 2 that on hearing the shriek of their mother, which came from outside the tiled house, they came out, pleaded to the accused to leave their mother. P.W.1 had stated that at about that time, A.3 drove them away showing a bill-hook. In these circumstances, the young boys had to go away.
40. Both P.Ws.1 and 2 have said that they have seen the occurrence hiding behind the kitchen shed. As already we have seen, there was light from the bulb in the front side of the nearby tiled-house. Both P.Ws.1 and 2 have clearly spoken about they having witnessed the gory incident.
41. The dead body of Muthulakshmi was found lying in between the kitchen shed and the southern side fence. P.W.11 Baluchamy, Village Assistant, a witness to Ex.P.2 observation mahazar had stated that from the kitchen shed, he cannot see the dead body.
42. The kitchen shed is a small shed. The specific evidence of P.Ws.1 and 2 is that they have viewed the occurrence standing behind it. They viewed it at the time when the occurrence had taken place. P.W.11 is not the eye witness. When P.W.11 came to the scene place along with P.W.14 Shanmugam, the Investigation Officer, the occurrence did not take place. Therefore, by such evidence of P.W.11, the evidence of P.Ws.1 and 2 cannot be doubted.
43. P.W.3 Dr.Vadivelu, on 5.1.2005, at about 2 p.m., at the Government Hospital, Ramanathapuram, conducted autopsy on the dead body of Muthulakshmi. In the stomach, he had seen rice (mhprp BrhW).
44. P.Ws.1 and 2 have stated that on 4.1.2005, at about 8 p.m., they had their dinner. In the circumstances, it has been contended by the learned counsels for the appellants that the time of her death viz., 12.30 a.m., is doubtful, so the occurrence time is also doubtful.
45. At about 12.30 a.m., her neck was cut. Her death was instantaneous. The portion of the organs of the body including the digestive organs came to an halt. The contents in her stomach, thereafter, have no chance for digestion. Further, in Ex.P.2 post-mortem certificate, P.W.3 had mentioned that she would have died about 14 to 18 hours prior to post-mortem. So, it corresponds to the occurrence time viz., 12.30 a.m., on the previous day. It is pertinent to note that during the occurrence time, no one was wearing a wrist-watch. The time given is only rough estimation.
46. P.Ws.1 and 2 have clearly stated that their mother was cut on her neck, right shoulder and right forearm. These are the three injuries noticed by P.W.3 during his autopsy on the dead body. The medical evidence corroborates the oral evidence.
47. P.W.1 had stated that A.3 brought M.O.1 bill-hook from the pial of their house. M.O.1 is (ghis rPt[k; mUths;), a bill-hook normally found in the houses of palmirah climbers, used to cut tender coconuts.
48. P.W.14 Investigation Officer had stated that he had not seen pial in the house. In Ex.P.13 rough sketch, in the front side of the tiled-house, two small sitting stones like places on both sides have been mentioned. It is not a pial in the ordinary sense. That is why it is so stated by P.W.14. But, it looks and used like a pial. That is how in the rustic way, P.W.1 had stated that it is a pial. From there only, M.O.1 bill-hook had been picked up by A.3.
49. It is the evidence of P.W.14, the Investigation Officer that on 5.1.2005, at about 9.30 a.m., in Pachaiyappan coconut thoppu, in Chinnaregunathapuram, he had arrested A.1 to A.3. A.1 gave him Ex.P.5 confession, which he recorded in the presence of P.Ws.6 and 11 ThiruMoorthy and Baluchamy, Village Assistants and in pursuance of that, A.1 had produced the blood-stained M.O.1 bill-hook and under Ex.P.6 mahazar P.W.14 had seized it. P.W.6 stated about their arrest, confession and seizure of M.O.1. However, in the Court, P.W.11 pointed out at A.2 as the person, at whose instance, M.O.1 was recovered. In these circumstances, the learned counsel for the appellants contended that recovery of M.O.1 is farce.
50. The seizure was on 5.1.2005 evening. On 6.3.2008, P.W.11 was examined in the trial Court. By that time, he had retired. Then, he was 65 years old. Then his vision also has become dim. In these circumstances, during trial, in the trial Court, his showing of A.2, instead of A.1 is not surprising. But, in the presence of evidence of P.W.6 and also of P.W.14 his such evidence will not make us to disbelieve the recovery of M.O.1 bill-hook.
51. P.W.3 had opined that the three injuries found on the person of the deceased could have been caused by a weapon like M.O.1.
52. P.W.4 Selvaraj, brother of deceased Muthulakshmi is residing in the nearby Sethunagar. About fifteen minutes, from that place, one can reach Vadakukudiyiruppu. After the occurrence, P.W.1 sent P.W.2 to bring P.W.4. P.W.4 had stated that P.W.2 met him, told him the occurrence and also about the accused. Thereafter, P.W.4 rushed to the scene place in his bike. When P.W.4 came, A.1, A.2 and Dinesh Kumar @ Dinesh took to their heels. Then, at that odd hour, the boys's father was not in the house. Their mother was almost beheaded. The four boys are in tender age group. A.1 to A.3 are all grown up. They were also armed. So, they were so audacious in waiting there itself for few minutes. However, on seeing their uncle, they ran away. The criticism of the accused that it looks odd that after the occurrence, for the accused to remain there for some time, in these circumstances, does not appear to be an oddity.
53. P.W.4 Selvaraj is an after occurrence witness. He had stated that he had seen A.1 running towards the western side jumping the fence and A.2 and A.3 also followed him. While P.W.1 stated that A.1 jumped towards southern side and then ran towards the western side. Nearly, three years after the occurrence, P.W.1 had deposed in the Court. We cannot expect him to keep this minute detail in his mind so long and repeat it in the Court.
54. It is the evidence of P.Ws.1 and 2 that on 4.1.2005, at about 9 p.m., A.1 came to their house, he asked their mother about the chit amount. She took exception for he having came in such an odd hour, when her husband is also not present, thus, she had scolded him and he left. At that time, P.Ws.1 and 2 were in the house. The evidence of P.W.1 shows that at about that time, they have also seen T.V in their house. They have clearly spoken about they having seen A.1 at that time in their house. Thereafter only, around 12.30 p.m., the occurrence proper had taken place.
55. This case is based on the evidence of eye witnesses. Motive is not necessary in such type of cases. A petty matter may spark into a grave crime. A small matter may contribute for the commission of a grave crime. It all depends on how people take it and also the type of people.
56. It seems that on that day, at about 9 p.m., in her house, A.1 was insulted by the deceased. Thereafter, at about 12 p.m., he came with his associates A.2 and A.3 and committed the heinous crime.
57. On 4.1.2005, mid night, the dead body was seen by P.Ws.1 and 4 and it was seen in the morning by P.Ws.11 and 14. They were all examined in the Court nearly after three years. In these circumstances, in their evidence they having stated different details as to the dress then they have seen on the dead body is not a significant one disturbing the prosecution case.
58. In the FIR, names of A.1 to A.3 have been mentioned. P.W.1 had stated that on 5.1.2005, morning, sniffer dog came to the scene place. P.W.14 Investigation Officer did not deny this.
59. It has been contended by the learned counsels for the appellants that when the names of the accused are mentioned in F.I.R employing sniffer dog indicates that the killers were not known and subsequently, the names of the accused have been included in the F.I.R.
60. It is not an invariable rule that when the names of the accused is mentioned in the FIR or the accused are known, the sniffer dog could not be employed by the Investigator nor the visit of the sniffer dog to the scene of crime would show that the accused were not known. Police employing trained sniffer dog is a method of investigation, a tool of investigation to crack the crime mystery. Even if the accused/killers were known, to find out, to trace the hidden piece of evidence of crime, such as weapons, blood- stained clothes etc., concealed in a vast area or in a forest like area assistance of sniffer dogs will be of very useful to the investigators. Therefore, the argument based on the visit of sniffer dog is of no use to the accused.
61. P.W.1 lodged the FIR. It contains the details of the occurrence. This has been criticised by the accused that P.W.1, a boy of such young age could not be believed to have given so much information in F.I.R.
62. Then P.W.1 is about 14 years old. He was studying IXth standard in a School. He is not a small kid. He is an eye witness. He had seen when his mother was cut. He knows the entire details of the case. He has revealed it in his complaint. There is no surprise or wrong in it.
63. The occurrence was on 4/5.1.2005 at about 12.30 a.m. It was night time. It is a small hamlet. Then, in the house, there was no adult male member. P.W.4 visited only after the occurrence. Then, the husband of the deceased (P.W.5) was in his mother's house in Pachayapuram. P.W.4 over phone informed P.W.5 about his sister's death. P.W.5 told him that he will arrive in the next morning. By bus, around 6 a.m., he came to his house. Seen the dead body of his wife. Thereafter, they went to Tirupulani Police Station. It is at a distance of 18 kms from VadakupuduKudiyiuppu. There, P.W.1, the eye witness to the occurrence, gave Ex.P.1 complaint. Thereafter, it was despatched to the Court in Ramanathapuram.
64. There is a time gap of 8 hours between the occurrence time and lodging of the FIR. But, this time gap is understandable, acceptable and explained. Thus, the argument that the FIR is to be viewed with suspicion on account of 8 hours delay cannot be sustained.
65. P.W.14 had stated that his investigation revealed that many people used to visit the house of the deceased, and she led an immoral life. P.W.14 also admits that the deceased and her husband were involved in many prohibition cases. It was suggested to P.Ws.4 and 5 by the accused that in the village, Adilingam gang and Ayyamperumal gang are rival gangs. They belongs to Adilingam gang. By this, the accused states that some of her enemy had killed her and put the blame on the accused.
66. There is no clear cut evidence that due to her immoral living, she had earned such and such persons as enemies and they had grouse to do away with her. So also, there is no evidence to show that so and so is their enemies in selling prohibited toddy. The suggestion as to two rival groups in the village has been denied to by P.Ws.4 and 5. There is no acceptable and concrete evidence to establish the accused version that the deceased might have been killed by somebody.
67. We have carefully analysed the clear cut evidence of P.Ws.1 and 2. It is pertinent to note that prior to the occurrence, the boys have no axe to grind as against the accused to implicate them in a serious murder charge. That apart, there is the evidence of after occurrence witness viz., P.W.4 who had seen the accused running away from the scene place. The medical evidence corroborates the oral evidence. M.O.1 weapon has been recovered based on the disclosure statement of A.1. There is no delay in lodging the FIR nor sending it to the Court. Considering all the above aspects, we accept the evidence of P.Ws.1 and 2.
68. Thus, prosecution has established its case beyond all reasonable doubts and the charges under Section 302 r/w. 34 IPC have been clearly proved against A.1 and A.2. In the circumstances, we concur with the findings of the trial Court.
69. It has been pleaded by the learned counsel for the accused that A.1 and A.2 are about 26 years old. They are very young. Sole-bread winners. So, mercy may be shown to them.
70. Right before the eyes of her sons, who were then 14 and 11 years old school going boys the accused have cut the neck of their mother like cutting the throat of a goat. It would have been a blood curdling sight for the young ones to view it. It will be everlasting in their mind as long as they live in this world. Nothing could compensate them for the loss of their mother under so painful circumstances. Killers of their mother do not deserve any mercy. If any sympathy is shown to them, it will be misplaced sympathy. They do not deserve any leniency.
71. In the result, these Criminal Appeals are dismissed. The conviction recorded as against the appellants and the sentences awarded to them by the learned Principal Sessions Judge, Ramanathapuram, on 8.8.2008 in S.C.No.61 of 2006 are confirmed.
Consequently, the connected Miscellaneous Petition is closed.
mvs.
To
1. The Principal Sessions Judge, Ramanathapuram.
2. The District Collector, Ramanathapuram
3. The Superintendent of Police Ramanathapuram.
4. The Superintendent, Central Prison, Madurai.
5. The Additional Public Prosecutor, Madurai Bench of Madras High Court Madurai.
6. The Inspector of Police Thirupulani Police Station Ramanathapuram District.