Madras High Court
Lakshmana Perumal vs State By The Inspector Of Police on 25 April, 2007
Bench: M.Chockalingam, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/04/2007 CORAM: THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Crl.A.(MD) No.811 of 2004 1.Lakshmana Perumal 2.Ellappan .. Appellants vs. State by the Inspector of Police, Kovilpatti West Police Station, Kovilpatti, Tuticorin District Crime No.61 OF 2001. .. Respondent Criminal Appeal filed under Section 374 (2) of Cr.P.C against the Judgment of conviction and sentence dated 7.6.2004 made in S.C.No.49/2002 on the file of the Additional Sessions Court (Fast Track Court No.1), Tuticorin. !For appellants : Mr.Shanmugasundaram Senior Counsel for Mr. S.Ravi ^For respondent : Mr.Daniel Manoharan Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J) Challenging the judgment of the Additional Sessions Division, Fast Track Court No.1, Tuticorin dated 7.6.2004 made in S.C.No.49/2002, the first accused and the second accused have brought-forth this Criminal Appeal. In the said sessions case, the accused were charged for the offence as follows:
I Charge: A.1 to A.3 u/s 120 (b) of IPC II Charge: A.1 and A.2 u/s 302 r/w 34 of IPC III Charge: A.1 u/s. 506 (2) of IPC
The accused were tried. A.1 was found guilty of the offences under Section 302 r/w 34 IPC and 506 (2) of IPC and A.2 was found guilty of the offence under Section 302 r/w 34 IPC. Both A.1 and A.2 were awarded imprisonment for life along with a fine of Rs.2,000/- in default to undergo six months R.I. under Section 302 r/w 34 of IPC. Apart from that, A.1 was awarded two years R.I. along with a fine of Rs.500/-, in default to pay, one month R.I. under Section 506 (2) of IPC. The sentences of A.1 are to run concurrently. A.3 was acquitted of the charge.
2. The short facts necessary for the disposal of the appeal can be stated thus:
(a) The deceased belonged to Avalnatham. PW.1 is his younger brother, who belonged to Nagammalpuram. PW.2 is the cousin brother of PW.1. There was a Kaliamman Kovil at Avalnatham. PW.7 is also the resident of the said Avalnatham. The deceased took charge of the Temple administration six months' prior to the occurrence. With respect to that, the first accused was on inimical terms with the deceased. On the date of occurrence, that was on 10.2.2001 at about 7.00 p.m. at the place of occurrence at Kovilpatti near a hotel, PW.1 was standing consuming tea. At that time, the deceased was coming in TVS 50 from the side of the railway gate and seeing PW.1 stopped at the hotel. When they were talking together, A.1 and A.2 armed with aruval came near them. Uttering the words "you are responsible for all these things in the Temple affair", A.1 began to attack the deceased with aruval. PW.1 though warded off, the attack fell on the deceased. In that process he fell down.
When the deceased fell down both the accused threatened the witnesses and they attacked the deceased indiscriminately. This was witnessed by not only PW.1 and PW.2 but also PW.4 to PW.6. Immediately, after the occurrence, they fled away from the occurrence. The deceased was immediately taken to the Government Hospital, Kovilpatti by PW.1 and PW.2. PW.15 Doctor, who was on duty in the hospital, declared him dead. An intimation was given originally to the Kovilpatti East Police Station; therefrom it was received by Koilpatti West Police Station.
(b) PW.21 the Sub Inspector of Police, attached to Koilpatti West Police Station, proceeded to the Government Hospital. He was informed that, PW.1 had already gone to the police station. Therefore, he returned to the police station where PW.1 gave a complaint, which was marked as Ex.P.1. On the strength of the complaint, a case was registered in Crime No.61/2001 under Section 302 IPC. The F.I.R.,Ex.P.23 was despatched to the Court.
(c) PW.22, the Inspector of Police attached to the West Koilpatti Police Station took up investigation, proceeded to the spot, made an inspection in presence of witnesses and prepared an Observation Mahazar Ex.P.9 and also Rough Sketch Ex.P.24 and he conducted inquest on the dead body of the deceased in the presence of witnesses and the panchayatdars and the same was marked as Ex.P.25. The dead body of the deceased was subjected to post-mortem by PW.16, who has issued a Post-Mortem Certificate Ex.P.8 wherein he has opined that the deceased died out of shock and haemorrhage due to the injuries sustained.
(d) The investigator came to know that the accused 1 and 2 surrendered before the Metropolitan Magistrate Court at Madras. On a request made, police custody was ordered. On 26.2.2001, accused 1 and 2 were taken to police custody. They were enquired. They voluntarily gave confessional statements. Pursuant to his confession, A.1 produced MO.1 Aruval. Pursuant to his confession, A.2 produced Mo.2 Aruval. Both were recovered under cover of Mahazar Ex.P.3 and Ex.P.4 respectively. Both MO.1 and MO.2 and the other material objects recovered from the place of occurrence and from the dead body were subjected to chemical analysis and the same were resulted in Chemical Reports and Serological Reports viz., Exs.P.17, P.18, P.19 and P.20.
(e) On completion of the investigation, the Investigating Officer filed a final report against the accused. The case was committed to the Court of Sessions. Necessary charges were framed.
3. In order to substantiate the charges, the prosecution has examined 22 witnesses, relied on 25 Exhibits and 15 MOs. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as false. On the side of the defence, two witnesses were examined viz., DW.1 and DW.2 and only one document was marked as Ex.D.1. On completion of the evidence, the Court heard the arguments advanced on either side and had a thorough scrutiny of the materials and took a view that the prosecution proved the case beyond all reasonable doubts and found the accused 1 and 2 guilty of the charges and awarded punishment referred to above. Third accused was acquitted of the charge levelled against him. Hence, the appeal at the instance of the first accused and the second accused.
4. Advancing arguments on the side of the appellants, learned Senior Counsel, Mr. Shanmugasundaram would submit that, in the instant case, the prosecution has rested its case on the direct evidence. PW.1, PW.2, PW.4, PW.5 and PW.6 and out of them, PW.4, PW.5 and PW.6 turned hostile. The prosecution has the evidence of PW.1 and PW.2. Since PW.1 was the younger brother of the deceased and PW.2 was a cousin brother of the deceased, their evidence should have been carefully scrutinised. If the test of careful scrutiny was applied, the lower Court should have rejected the testimony in toto. Even as per their evidence, PW.1 and PW.2 were chance witnesses. They did not accompany the deceased. Just before the occurrence had taken place, the deceased was coming in a TVS 50 moped while PW.1 was consuming tea standing in front of a hotel. Insofar as the evidence of PW.2, his presence at the place of occurrence was thoroughly ruled out by the evidence of DW.2, who was none else than the son of PW.2. According to DW.2, his father due to stomach pain, was admitted as inpatient in the hospital from 4.2.2002 to 10.2.2001. He has admitted that on the date of occurrence, he was along with his father till 7.30 p.m.,. If to be so, PW.2 could not have been in the place of occurrence. Apart from that, DW.1 Doctor has been examined as DW.1, who gave treatment to PW.2. He has deposed that PW.2 was taking treatment in the hospital and he left the hospital on his own at about 8.00 p.m. on the date of occurrence. This has also been recorded in Ex.D.1. From the evidence of DW.2 and from the document Ex.D.1, it would be quite clear that PW.2 could not have been present at the time and place of the occurrence.
5. Added further the learned Senior Counsel that insofar as the evidence of PW.1, his testimony remain uncorroborated. He was a chance witness. Apart from that, he was the younger brother of the deceased. PW.1 all along in his evidence has spoken to the effect that PW.2 was also along with him, which was a false story. This piece of evidence would be an indicative of the fact that PW.1 could not have been in the place of occurrence since as per the evidence of DW.2, the deceased was brought to the Government Hospital, Kovilpatti by a police constable and not by PW.1.
6. Added further the learned Senior Counsel that A.R. Copy Ex.P.6 was issued for the dead person. It is found that the dead body was brought to the Government Hospital by PW.2 Venkatasamy and PW.1 Kriashnasamy. From the evidence of DW.2, it would be quite clear that PW.2 could not have been present in the place of occurrence. Thus, the entries found in A.R. Copy Ex.P.6 are improbable and unbelievable. It should have been an introduction in order to make these witnesses as eye-witnesses.
7. Added further the learned Senior Counsel that according to PW.1, a number of injuries were sustained by the deceased and when he took the body of the deceased, entire clothes were blood-stained. The evidence of the investigator would reveal that clothes were not recovered, which is the worst part of the prosecution. MO.1 and MO.2 recovered pursuant to the alleged confession of A.1 and A.2 would indicate that the aruvals had wooden handles but the report issued by the Forensic Department after analysis, reveals that the aruvals had horned handles. It was nothing but an introduction of the weapon of the crime.
8. Thus, the entire evidence of the prosecution remain shattered and it would go to show that PW.2 could not have seen the occurrence; that PW.1's evidence was false; that the recovery of MO.1 and MO.2 pursuant to the alleged confession are nothing but false introduction and that the medical evidence was also not in support of the prosecution case. The evidence of PW.1 should have been rejected by the lower Court. Thus, doubts are attendant over the evidence adduced by PW.1 and PW.2. Therefore, both the accused/appellants are entitled for acquittal in the hands of this Court.
9. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration.
10. It is not a fact in controversy that one Ramasamy belonged to Avalnatham sustained injuries in the incident that took place at about 7.00 p.m. on 10.2.2001 and he was taken to the Government Hospital, Kovilpatti where he was declared dead by PW.15, Doctor who was on duty then. On receipt of intimation, a case was registered by the Sub Inspector of Police PW.21 and the Inspector of Police PW.22 took up investigation and after inquest was made in the presence of witnesses and panchayatdars, the body was subjected to post- mortem by the doctor PW.16, who has given his opinion in the course of Post- Morterm Certificate Ex.P.8 that the deceased would appear to have died out of shock and haemorrhage due to injuries sustained to vital organs. The fact the deceased died out of homicidal violence was never questioned by the accused/appellants at any stage of the proceedings. Under the circumstances, without any impediment it could be factually recorded that the deceased died out of homicidal violence and so recorded.
11. In order to substantiate the case of the prosecution that it was the accused/appellants who attacked the deceased at the time of occurrence and at the place of occurrence as put-forth by the prosecution and caused his death, the prosecution has examined 5 eye-witnesses viz., PW.1, PW.2, PW.4, PW.5 and PW.6. Out of them, 3 witnesses viz., PW.4, PW.5 and PW.6 turned hostile. Thus, the prosecution had rested its case only on the evidence of PW.1 and PW.2.
12. PW.1 is the younger brother and PW.2 is the cousin brother of the deceased. In a given case, where the eye-witnesses are related to the deceased, the Court has to exercise great care and caution in respect of their evidence. Under the circumstances, if the test of careful scrutiny was applied, the evidence of PW.1 and PW.2 should have been rejected. The Court is afraid to find that the lower Court has accepted their evidence.
13. Insofar as PW.2, it is highly doubtful whether PW.2 could have been present in the place of occurrence in view of the evidence of DW.2, who is the son of PW.2. DW.2's name was also listed in the witnesses but he was not before the Court but he was examined as a defence witness. According to him, his father, PW.2 was admitted in the Government Hospital, Kovilpatti as inpatient from 4.2.2001 to 10.2.2001 and he was with his father till 7.30 p.m. on the date of occurrence. If to be so, the presence of PW.2 at the time of occurrence i.e., at about 7.00 p.m., and at the place of occurrence was completely ruled out. Added circumstance was the evidence of DW.1 through Ex.D.1, which was the case sheet pertaining to the treatment given to PW.2 where it is found that PW.2 was absconded from the said Government Hospital at about 8.00 p.m.,. It would be quite clear from the evidence of DW.2 and also Ex.D.1, PW.2 could not have been in the place of occurrence.
14. Thus, now what is left for the prosecution was the evidence of PW.1. PW.1 was the solitary piece of evidence. It was also remain uncorroborated. It appears that PW.1 was a chance witness. According to the earliest document in the case viz., A.R.Copy in respect of the deceased viz., Ex.P.6, both PW.1 and PW.2 took the deceased to the Government Hospital, Kovilpatti from the place of occurrence. But, from the evidence of DW.2, it would be quite clear that PW.2 did not bring the deceased to the Government Hospital but the dead body of the deceased was brought by the respondent police. Had it been true, PW.1 was the actual person, who could have taken the dead body. Hence, his name alone should have been entered in the A.R.Copy Ex.P.6 but wherein entries have been made that both PW.1 and PW.2 brought the dead body to the hospital. In his evidence of PW.1, he has deposed that PW.2 was accompanying him right from the incident of occurrence till the deceased was taken to the Government Hospital. On contra, the materials are available to show that PW.2 could not have been present, which also castes a doubt about the evidence of PW.1.,. Viewing from the evidence of DW.2 to the effect that the dead body of the deceased was brought by the police to the Government Hospital, Kovilpatti, it was highly doubtful that PW.1 could have been at the place of occurrence.
15. Added further circumstances are non-recovery of the bloodstained clothes from PW.1. Apart from this, the prosecution relied on MO.1 and MO.2 recovered pursuant to the alleged confession said to have been given at the time of police custody by A.1 and A.2. With regard to this aspect, it is rightly pointed out by the learned Senior Counsel that two weapons of the crime viz., aruvals MO.1 and MO.2 were recovered under cover of Mahazar and they were described as with wooden handle but from the report issued by the Forensic Department after analysis, it could be seen that they were with horn handles. It would go to show that the confession alleged to have been made by the accused at the time of police custody and recovery of MO.1 and MO.2 are nothing but an introduction to strengthen the case of the prosecution. The recovery of MO.1 and MO.2 has been falsified through documentary evidence.
16. In the instant case, the case is rested on the evidence of PW.1 only, who happens to be a chance witness and his evidence was also uncorroborated as narrated above. Under the circumstances, it would be highly unsafe to sustain the conviction and sentence imposed on the appellants. The Court is of the considered opinion that the judgment of the trial Court has got to be made undone only by upsetting the judgment. Accordingly, the judgment of the trial Court is set aside. The accused are acquitted of the charges levelled against them. They are directed to be set at liberty forthwith unless they are required in connection with any other case. The fine amount, if any paid by the appellants, shall be refunded to them. The Criminal Appeal is allowed.
asvm To
1.The Additional Sessions Court (Fast Track Court No.1), Tuticorin.
2.The Inspector of Police, Kovilpatti West Police Station, Kovilpatti, Tuticorin District.
3.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.