Madras High Court
Sankar @ Sankar Ganesh vs State Represented By on 22 August, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, J.Sathya Narayana Prasad
Crl.A.(MD)No.347 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 08.08.2024
PRONOUNCED ON : 22.08.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
Crl.A(MD)No.347 of 2020
1.Sankar @ Sankar Ganesh
2.Esakki ... Appellants
vs
State represented by
The Inspector of Police,
Radhapuram Police Station,
Tirunelveli District.
(in Cr.No.02 of 2015) ...Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to call for the records from the lower Court and duly set
aside the judgment passed by the learned IV Additional Sessions Judge,
Tirunelveli, Tirunelveli District in his S.C.No.502 of 2015, dated
12.10.2020.
For Appellants : Mr.V.Kathirvelu
Senior Counsel for Mr.K.Prabhu
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
****
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https://www.mhc.tn.gov.in/judis
Crl.A.(MD)No.347 of 2020
JUDGMENT
The first and second accused in S.C.No.502 of 2015 on the file of the IV Additional Sessions Court, Tirunelveli, who had been convicted and sentenced, as given below, by judgment, dated 12.10.2020, have filed the present Criminal Appeal:
S.No. Offence Sentence Fine In default
sentence
1. 341 of 1 month 500/- 10 days simple
IPC simple each imprisonment
imprisonment each
each
2. 294(b) of 3 months 1000/- 1 month simple
IPC simple each imprisonment
imprisonment each
each
3. 302 of Life 10,000/- 3 years rigorous
IPC imprisonment each imprisonment
each each
4. 506(ii) of 3 years of 1000/- 1 year simple
IPC rigorous each imprisonment
imprisonment each
each
2.As a matter of fact, there were totally five accused, who stood trial. The 1 to 5 accused were acquitted of the charge under Section 120B IPC. 2/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 The 3 to 5 accused were acquitted of the charge under Section 302 of IPC r/w Section 34 of IPC.
3.It must also be mentioned that the first accused is the grandson of the fourth accused and the son of the fifth accused. The second and third accused are both brothers and paternal uncles of the first accused.
4.The case of the prosecution is that the father of the first accused/husband of the fifth accused, Raj had an intimate relationship with one Tamilarasi, who was examined as PW-7, the daughter of the deceased. The father of the first accused, Raj and Tamilarasi went away from their respective houses and stayed in a rented house at Chengalpattu for three days and later, returned to Nanguneri in Tirunelveli District. The said Raj, then, committed suicide. This caused enmity between the family members of the accused on the one hand and the family members of the deceased, who was the mother of Tamilarasi, on the other hand. It is the further case of the prosecution that in the cellphone of Raj, there was a photo, as if he was tying Thaali to Tamilarasi. This photo was shown by the first accused Shankar @ Shankar Ganesh to the fourth accused, Arumuga Kani and to her 3/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 daughter, Maheswari. About four days prior to the date of incident, the deceased had gone over to the village of the accused and quarrelled with the fifth accused demanding the memory card containing the photo of Raj and Tamilarasi.
5.It is the further case of the prosecution that all the accused persons then conspired to kill any one of the family members of the deceased.
6.It had been further stated that on 02.01.2015, the deceased and her son Muthu, who was examined as PW-1, went to Radhapuram. The deceased went to the Union Office, where a meeting had been scheduled for Noon Meal Scheme Workers and her son had gone there to get the birth certificate of his daughter. They were returning back and went to meet their relative, Petchiammal (PW-5) at Neduvali Village. At around 12.45 pm., when they were near the corner of North Street of Neduvali, the first and second accused came in the opposite direction in a motorcycle bearing Reg.No.TN-72-Q-3937 and waylaid them. The second accused is said to have assaulted the deceased on her head, right hand finger and right neck using an Aruval (sickle). The first accused is said have assaulted the 4/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 deceased on her jaw, neck and right shoulder using Aruval (sickle). The deceased collapsed and died on the spot.
7.When PW-1, Muthu, tried to catch them, the accused threatened him in filthy language and criminally intimidated him and fled away from that place. It is stated that PW-1, Muthu then went to the Registrar Office at Radhapuram and got a complaint written down and later, went to Radhapuram Police Station and lodged the same at 01.30 pm. Consequent to the complaint, FIR in Cr.No.2 of 2015 was registered by PW-17, Krishnasamy, Special Sub Inspector of Police, against the first and second accused under Sections 341, 294(b), 302 and 506(ii) IPC. This FIR was marked as Ex-P13.
8.The express copy of the complaint and FIR were handed over to PW-22, Rajamani, Special Sub Inspector of Police, Radhapuram Police Station at 02.30 pm., to hand it over to the Judicial Magistrate Court at Valliyoor. When PW-22, went to the Judicial Magistrate Court at Valliyoor at 03.30 pm., he found that the Judicial Magistrate was on leave and the in- charge Magistrate was the Judicial Magistrate-I, Tirunelveli. He reached 5/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 the residence of the Judicial Magistrate No.I, Tirunelveli at 07.30 pm and handed over the express copy of complaint and FIR.
9.Thereafter, investigation was taken up by Chinnasamy, PW-23, Inspector of Police, Radhapuram Police Station. He had been informed through phone by PW-17, Krishnasamy, Special Sub Inspector, who had registered the FIR. He then went over to the scene of crime in Neduvali Village. PW-17, Krishnasamy also came to that place and handed over the express copy of the complaint and FIR, which were, as stated, despatched through express tapal through PW-22, Rajamani, Special Sub Inspector of Police, to the Judicial Magistrate Court. PW-23, Chinnasamy, then prepared a rough sketch about the scene of crime in the presence of Mani (not examined) and Thillai Natarajan (PW-6). He also recovered and seized an Aruval of 38 cm (MO-3) with blood stains, one pair of male slippers (MO-10), one pair of ladies slippers (MO-11), black ladies hand bag (MO-7), hand cloth (MO-14), blood stained sand (MO-12) and sand without blood stain (MO-13) in the presence of witnesses. The rough sketch of the scene of crime was marked as Ex-P27.
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10.Thereafter, PW-23 conducted inquest over the dead body of Indira between 03.00 pm and 05.30 pm on the very same day, 02.01.2015, in the presence of Panchayatars. He also recorded the statements of the witnesses, Muthu (PW-13), Murugan (not examined), Ravi (not examined), Thillai Natarajan (PW-6), Mani (not examined) and Rajamani (PW-22). He prepared the inquest report in Ex-P28. He then sent the body for postmortem to the Government College and Hospital at Asaripallam in Nagercoil along with requisition. After the postmortem was completed, he took steps for burial of the body.
11.He then examined and recorded the statements of eye witnesses, Gilda (PW-2), Charles (PW-3), Mallika (PW-4) and Petchiammal (PW-5). He then received information that A2 had given an extra judicial confession statement before the Village Administrative Officer, Semmalar (PW-8) and when A2 was brought to the Police Station, he arrested A2. He recorded the confession statement of A2 and in pursuant thereof, recovered and seized from behind the Seelathikulam Panchayat Office the hidden motorcycle bearing registration No.TN-72-Q-3937 (MO-1), an aruval (sickle) (MO-2), lungi (MO-8), shirt (MO-9). The admissible portion of the confession 7/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 statement was marked during trial as Ex-P5. He then forwarded the material objects under Form-95 to the jurisdictional Judicial Magistrate Court and remanded A2 to custody.
12.The investigation was continued by PW-24, David Ravi Raj, Inspector of Police, who joined at Radhapuram Police Station on 06.01.2015. He examined the case diary. He also visited the scene of crime. He then examined Muthu (PW-1), son of Murugan, Murugan, son of Esakki Muthu (not examined), Ravi son of Esakki Muthu (not examined), Thillai Natarajan (PW-6), Mani (not examined), Krishnasamy, Special Sub Inspector of Police (PW-17), Semmalar, Village Administrative Officer (PW-8), Madan, Village Assistant (not examined), Thiraviakumar, Constable (PW-16). Since the witnesses stated the same facts, as stated to PW-23, Chinnasamy, he did not record their statements. He then went to the house of A1 and examined the witnesses Sudalai and Esakki Muthu, but again did not record their statements.
13.He then received information that A1, Shankar @ Shankar Ganesh had surrendered before the Judicial Magistrate Court at Nanguneri on 8/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 06.01.2015. PW-24, David Ravi Raj, Investigation Officer, then filed an application before the Judicial Magistrate Court, Valliyoor to take A1 under police custody and took him under police custody on 08.05.2015 at 05.15 pm. He brought him to Radhapuram Police Station and recorded his confession statement in the presence of witnesses, Mani (not examined) and Thillai Natarajan (PW-6). On the basis of the confession statement, he recovered the blood stained black pant (MO-15), black and white t-shirt (MO-16) and a 2GB memory card (MO-17). The admissible portion of confession statement of A1 was marked as Ex-P29. He then prepared seizure mahazar, Ex-P13. He then remanded A1 to judicial custody. He also forwarded the seized materials objects under Form-95 to the jurisdictional Judicial Magistrate Court.
14.He then received information that A5, Esakkiammal had surrendered before the Judicial Magistrate Court-IV, Tirunelveli and had been remanded to judicial custody. He then forwarded the material objects for forensic examination. He then arrested A4, Arumugakani on 10.03.2015 at 11.00 am near Samugarangapuram bus stop. He also recorded her confession statement and later remanded her to judicial custody. He then 9/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 received information that A3, Kannan, had surrendered before the Judicial Magistrate Court, Nanguneri on 13.03.2015. He then obtained the postmortem report from Dr.Rajesh (PW-21), who had conducted postmortem on the dead body of Indira. He also recorded the statement of Dr.Rajesh. He then also addressed a letter to the Motor Vehicle Inspector at Valliyoor to obtain details about the motorcycle, which had been seized. He received information that it belonged to Sudalai, son of Sundhara Konar at Kasthuri Rengapuram. He recorded his statement on 13.04.2015. The witness stated that he had sold the motorcycle to A2, Esakki, but A2 had not effected name transfer.
15.PW-9, Sudalai in his statement informed that on 02.10.2014 in the evening at 04.30 pm, all the accused had entered into a criminal conspiracy in the house of A1 and A2 at Kuttinainarkulam that they would murder either the deceased Indira or her daughter Tamilarasi or any member of the family of the deceased. He also prepared a mahazar with respect to the house of A1, Shankar @ Shankar Ganesh.
10/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020
16.PW-24, David Ravi Raj, Investigating Officer, then prepared the final report charging A1 and A2 for commission of offences under Sections 341, 294(b), 302 and 506(ii) IPC and also 120(B) IPC and charging A3, A4 and A5 for commission of offences under Sections 341, 294(b), 302, 120(B) r/w 34 IPC. The final report was taken cognizance as P.R.C.No.29 of 2015 by the learned Judicial Magistrate, Valliyoor.
17.On appearance of the accused before the Judicial Magistrate, Valliyoor, copies under Section 207 of Cr.P.C., were furnished and P.R.C.No.29 of 2015 was committed to the Court of Sessions. It was made over by the Principal Sessions Court, Tirunelveli for trial to the IV Additional Sessions Court at Tirunelveli. The following charges were framed against the accused:
S.No. Accused Charges
1. A1 to A5 under Section 120(B) IPC
2. A1 and A2 under Section 341 IPC
3. A1 and A2 under Section 294(b) IPC
4. A1 and A2 under Section 302 IPC
5. A1 and A2 under Section 506(ii) IPC
6. A3 to A5 under Section 302 IPC r/w 34 IPC 11/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020
18.When the charges were read over and explained to the accused, they abjured the charges and pleaded not guilty. Thereafter, trial commenced before the IV Additional Sessions Court at Tirunelveli. The prosecution was called upon to prove the charges in manner known to law. Accordingly, the prosecution examined PW-1 to PW-24 and marked Ex-P1 to Ex-P30 and produced MO-1 to MO-17.
19.On conclusion of recording evidence, the incriminating portions were read over to the accused under Section 313 (1)(b) Cr.P.C and their explanations were recorded. Finally, judgment was pronounced on 12.01.2020 by the IV Additional Sessions Court at Tirunelveli. In the judgment,
(i)A1 to A5 were acquitted for offences under Section 120(B) IPC;
ii)A1 and A2 were convicted for offences under Sections 341, 294(b), 302 and 506(ii) IPC.
(iii) A3 to A5 were acquitted for offence under Sections 302 r/w 34 IPC.
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20.A1 and A2 were convicted and sentenced as below:
S.No. Offence Sentence Fine In default
sentence
1. 341 of 1 month 500/- 10 days simple
IPC simple each imprisonment
imprisonment each
each
2. 294(b) of 3 months 1000/- 1 month simple
IPC simple each imprisonment
imprisonment each
each
3. 302 of Life 10,000/ 3 years rigorous
IPC imprisonment - each imprisonment
each each
4. 506(ii) of 3 years of 1000/- 1 year simple
IPC rigorous each imprisonment
imprisonment each
each
21.It must be mentioned that among the prosecution witnesses examined, the eye witnesses, PW-2, PW-3, PW-4 and PW-5 deposed adverse to the prosecution and were declared hostile. Similarly, PW-9, who was the witness for the mahazar at house of A1, PW-10, who was one of the witnesses for the seizure of MO-14, 15, 16 and 17 from the house of A1, PW-11, Selvakumar, who was also the second witness for the seizure of the same material objects, PW-12, Durai, who was the witness for arrest of A4, Arumugakani and PW-13, Muthu, who was the witness for confession 13/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 statement of A4, were also declared hostile.
22.In the judgment of the trial Court, the learned Sessions Judge had extracted in verbatim the statement of PW-1, Muthu, and also of those witnesses, who had been turned hostile. A finding was given that the accused harbored enmity against the deceased, since the daughter of the deceased, Tamilarasi, PW-7, who the accused alleged had eloped with Raj, father of A1 and husband of A5 and they lived together for three days at Chengalpattu. Later, they came back to Tirunelveli and Raj, father of A1/husband of A5, died by committing suicide. It is the case of the prosecution that owing to this incident, the accused conspired to kill any one of the members of the family of the deceased. The learned Sessions Judge placed reliance on the evidence of PW-1, who was an eye-witness and disregarded the evidence of the witnesses who had been declared as hostile.
23.The learned Sessions Judge observed that on 04.01.2015, the deceased, who was working in a noon meal centre, had gone to Radhapuram to attend a meeting and PW-1 had accompanied her to get the birth certificate of his daughter in the Corporation Office at Radhapuram and 14/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 later, since the meeting was postponed and the birth certificate also could not be obtained, they went towards the house of Petchiammal (PW-5), their relative and when they were walking near the North Street in Naduvali village, as stated by PW-1, A1 and A2 came in the opposite direction in a motorcycle and with aruvals, which they had hidden under the seat, indiscriminately attacked the deceased, Indira, who died on the spot.
24.The learned Sessions Judge placed complete reliance on the evidence of PW-1, who had deposed that he immediately left the place and went to the Registrar Office at Radhapuram and got a complaint written down by a document writer and lodged the complaint at 01.30 pm on the same date before the Radhapuram Police Station. The learned Sessions Judge found no discrepancy in the evidence of PW-1. He also placed reliance on the evidence of PW-9, the Village Administrative Officer, before whom A2 had given an extra judicial confession. He, thereafter, examined the evidence of Dr.Rajesh, PW-21, who conducted the postmortem.
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25.The learned Sessions Judge held that the accused had strong motive to do away with anyone of the family members of the deceased, since the father of A1 had gone away to Chengapalattu with PW-7, Tamilarasi, daughter of the deceased. After they had come back, the father of A1 committed suicide. When his mobile phone was examined, A1 found a photo, as if his father tied Thaali to PW-7. The learned Sessions Judge further noted that this photograph was shown by A1 to A4 and also to her daughter, Maheswari, and then it came to the knowledge of the deceased, who a few days prior to the incident, went over to the residence of A1 and A5 and demanded return of the memory card. Thereafter, it is stated that A1 to A5 conspired to murder any one of the family members of Indira.
26.The learned Sessions Judge then placed reliance on the evidence of PW-1, who was present at the time of commission of offence and noted that his evidence had also withstood cross examination. Taking into consideration that sole evidence, the learned Sessions Judge acquitted A3 to A5 from all charges and convicted A1 and A2 for commission of offences under Sections 506(ii), 341, 294(b) and 302 IPC. This judgment of the learned Sessions Judge, dated 12.10.2020, is under appeal before us. 16/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020
27.Heard arguments advanced by Mr.V.Kathirvelu, learned Senior Counsel for Mr.K.Prabhu, learned Counsel appearing for the appellants and Mr.S.Ravi, learned Additional Public Prosecutor appearing for the respondent.
28.Mr.V.Kathirvelu, learned Senior Counsel took the Court through the charges framed against the accused and through the evidence recorded on behalf of the prosecution. The learned Senior Counsel stated that much prior to the date of incident, Raj, the father of A1/husband of A5, is stated to have eloped with PW-7, Tamilarasi, daughter of the deceased/younger sister of PW-1, Muthu. They had both gone away to Chengalpattu and stayed there for three days. The learned Senior Counsel stated that this act of Raj and Tamilarasi, was the starting point of enmity between the family of the accused and the family of the deceased. He pointed out that, however, no investigation was done with respect to this aspect, namely, stay at Chengalpattu by Raj and Tamilarasi.
29.The learned Senior Counsel further stated that later they came back to Nanguneri and Raj went over to his house and committed suicide. 17/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 The learned Senior Counsel further pointed out that even with respect to this aspect, no investigation has been done and even if done, since it was a death by unnatural cause, no documents had been produced to show why Raj committed suicide. According to the learned Senior Counsel, this was the second reason for hostility between the family of the accused and the family of the deceased.
30.He pointed out that the case of the prosecution was that on 02.10.2014, all the accused gathered in the house of A1 and A2 and conspired to murder any one of the family members of the deceased. The learned Senior Counsel then pointed out that on 02.01.2015, exactly three months later, it is the case of the prosecution that at a place, which is nearly about 25 km away from the house of A1 and A2, at the junction of the road going from Radhapuram to Mudavankulam and Neduvali North Street, A1 and A2 are alleged to have committed the murder of the deceased Indira/mother of PW-7, Tamilarasi, when she was there along with PW-1, Muthu, her son.
31.The learned Senior Counsel pointed out the improbability of A1 18/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 and A2 in locating the deceased in a place nearly about 20 to 30 km away from their house. He stated that it was the case of the prosecution, as stated by PW-1, that the deceased had gone to Radhapuram to attend a meeting, since she was a Noon Meal Organizer and PW-1 had gone there to get the birth certificate of his daughter. The learned Senior Counsel further pointed out that no investigation had been conducted, whether such a meeting actually took place and whether the meeting was adjourned or whether the meeting was actually scheduled. He also pointed out that no investigation has been done regarding the availability or non availability of the birth certificate of the daughter of PW-1.
32.He also pointed out that PW-1 was working as a Mechanic in TVS and no investigation had been done, as to whether he attended the place of work on that date, since it was a working day and the incident had happened exactly in the noon. The learned Senior Counsel, therefore, was vehement in his assertion that the presence of A1 and A2 is doubtful and more over the presence of PW-1 is also doubtful. In this connection, he pointed out the evidence of PW-2 to PW-5, the other eye witnesses, residents of that particular area, who turned hostile and stated that they did not know 19/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 anything about the case. There was no reason for them to turn hostile, since the accused were residing nearly 25 kms away in a small village. The learned Senior Counsel stated that even PW-5, Petchiammal, who was a relative of the deceased and PW-1, had also turned hostile.
33.The learned Senior Counsel further stated that from the very spot, a blood stained aruval had been seized, but the blood found therein had not been subjected to forensic examination. He also pointed out the evidence of PW-1, who stated that after the incident, he just deserted his mother, who was lying in a pool of blood and walked over to the Registrar Office at Radhapuram, contacted a document writer, who wrote down a complaint and PW-1 later proceeded to the Police Station and lodged the complaint at 01.30 pm after 45 minutes. In this connection, the learned Senior Counsel pointed out the strange behavior of PW-1, who did not even take any step to call for help or to send the dead body of his mother in an ambulance to the hospital.
34.The learned Senior Counsel pointed out the complaint, Ex-P1 which ran to 5½ pages in Tamil and stated that it contained perfect details of 20/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 the incident and could not have been dictated by a person, who had just witnessed the murder of his mother. The improbability of this was also pointed out by the learned Senior Counsel. The learned Senior Counsel also stated that from the scene of crime, a pair of male slippers were also recovered and no investigation was done to find out, as to whom they belonged to.
35.The learned Senior Counsel further pointed out that in the postmortem report, PW-21, Dr.Rajesh, had stated that rigor mortis had set only in the lower limbs. The learned Senior Counsel also pointed out that though the memory card was seized, the cellphone was not recovered. The learned Senior Counsel further pointed out the evidence of PW-1, wherein, he stated that when he went and lodged the complaint in the Police Station, there were blood stains in his shirt and pant, but those clothes were not recovered and the reason given was that there was no alternate shirt to be given to him. The learned Senior Counsel further stated that if proper investigation had been done, the shirt containing the blood must have been seized by the respondent. By pointing out all these discrepancies in the investigation, the learned Senior Counsel urged that the conviction against 21/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 A1 and A2 must be set aside by this Court.
36.Mr.S.Ravi, learned Additional Public Prosecutor, however, disputed the contentions raised. The learned Additional Public Prosecutor pointed out that there was a clear motive for the murder, since the father of A1, had run away with PW-7, Tamilarasi, the daughter of the deceased and younger sister of PW-1, Muthu to Chengalpattu for a period of three days. After they came back, Raj committed suicide and this was the immediate cause for hostility and motive for the murder. The learned Additional Public Prosecutor further stated that the actual incident of murder was witnessed directly by PW-1, whose evidence could not be shaken during cross examination. He stated that PW-1 was also threatened by the accused and since his mother had already died, he went over to the Registrar Office and got a complaint written down and lodged it before the Radhapuram Police Station at 01.30 pm within 45 minutes from the incident of murder. The learned Additional Public Prosecutor stated that thereafter, the FIR copy was forwarded to the Judicial Magistrate at Valliyoor, but since the Judicial Magistrate was on leave, the FIR had to be taken to Tirunelveli and submitted before the in-charge Magistrate, namely, the Judicial Magistrate 22/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 No.IV, Tirunelveli. He therefore stated that the lodging of FIR before the Judicial Magistrate No.IV, Tirunelveli at 07.30 pm in his residence was explainable with acceptable reasons.
37.The learned Additional Public Prosecutor stated that A2 had given an extra judicial confession statement before the Village Administrative Officer, who was examined as PW-8. He also pointed out that PW-7, Tamilarasi, was also examined by the prosecution, who spoke about going to Chengalpattu with the father of A1 and coming back and being dropped at Nanguneri.
38.The learned Additional Public Prosecutor stated that on 02.01.2015, the deceased and her son PW-1 went to Radhapuram. The deceased had to attend a meeting, since she was a Noon Meal Organizer and PW-1 wanted to get the birth certificate of his daughter. The meeting was, however, postponed and the birth certificate could not be obtained. Both of them were therefore proceeding to the house of PW-5, Petchiammal, their relative and at the junction of the road, A1 and A2 came in the opposite direction in a motorcycle and by using two aruvals, which they had hidden 23/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 in the seat of the motorcycle, indiscriminately cut the deceased causing instant death.
39.The learned Additional Public Prosecutor stated that the incident took place in the month of Margazhi, which is a cold month and therefore, there was no possibility of rigors mortis setting through the entire body and this explained the absence of rigors mortis in the upper part of the body. The learned Additional Public Prosecutor also stated that though it is a fact that the statement recorded under Section 161 Cr.P.C. had been reduced in the judgment, however, that should not be a ground to set aside the judgment, since in the other portions, there has been examination of the evidence of PW-1, PW-6, Thillai Natarajan, one of the witnesses for recovery, PW-7, Tamilarasi, PW-8, Semmalar, Village Administrative Officer and the official witnesses. The learned Additional Public Prosecutor stated that therefore, some of the witnesses turning hostile should not affect the case of the prosecution.
40.The learned Additional Public Prosecutor pointed out the investigation conducted and stated that it was focussed only on the motive, 24/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 occurrence and the arrest of the accused, which are the crucial issues in the case. He therefore stated that through the evidence of PW-1 and through the recovery of material objects, particularly, the cloth, which contained human blood, as being the same blood group as that of the deceased and the extra judicial confession statement, the prosecution had proved the commission of offence under Section 302 IPC against A1 and A2 and therefore stated that the appeal must be dismissed and the judgment of the trial Court must be upheld.
41.We have carefully considered the arguments advanced and perused the material records.
42.The point to be examined on re-appraisal of evidence is whether the prosecution had proved the charges against A1 and A2 beyond all reasonable doubt?
43.The case of the prosecution is that Raj, father of A1, Shankar @ Shankar Ganesh and husband of A5, Esakkiammal, had developed intimate relationship with Tamilarasi (PW-7), an unmarried young girl and daughter 25/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 of the deceased, Indira and younger sister of PW-1, Muthu. She was working in a Garment Factory at Chennai. It is the case of the prosecution that Raj had taken a house for rent at Chengalpattu and enticed PW-7, to stay with him in that rental house. They stayed there for three days. Thereafter, PW-7, Tamilarasi, received a phone call that in her native place at Thisayanvilai in Tirunelveli, her mother and her relatives were searching for her. Therefore, Raj and Tamilarasi came back and Raj left her near the Judicial Magistrate Court at Nanguneri and went over to his house. Thereafter, owing to reasons which have not been given, Raj committed suicide and died.
44.The act of him staying in a rented house at Chengalpattu with PW-7, Tamilarasi was the first reason for hostility between the family of the accused and the family of the deceased. Unfortunately, no investigation had been done about this fact of staying at Chengalpattu. After Raj had come to his native place, he committed suicide. This was the second reason for the hostility to increase. After his death, A1 found a photograph in the cellphone of Raj, as if Raj was tying Thaali to Tamilarasi. This was the third reason. This photograph was shown by A1 to A4, Arumugakani, his 26/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 grandmother, and also to her daughter Maheswari. This photograph then came to the knowledge of the deceased Indira. Here, investigation must have been done to record the statement of Maheswari, but, she had not been examined as a witness before the Court. This is crucial because, it is the further case of the prosecution and more specifically the case of PW-1, Muthu, that his mother deceased, Indira immediately went over to the house of the accused and picked up a quarrel with A5, Esakkiammal demanding return of memory card of the cellphone of Raj. It was not given to her. There was a wordy quarrel between the two of them. There is a gap in the investigation, because, this quarrel would have heightened the hostility between the family of the accused and the deceased, since that photograph was a direct evidence for the relationship between Raj and Tamilarasi.
45.The fact that they stayed in Chengalpattu could not be spoken by Raj, since he committed suicide and would not be revealed by PW-7, Tamilarasi, except skeptically. As a mother, the deceased had more cause for grievance against the family of the accused. Thereafter, it is the specific case of the prosecution, that on 02.10.2014 all the accused gathered around and conspired to commit the murder of either Indira or Tamilarasi or any 27/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 member of that family. All the accused have been acquitted of this particular charge. But, the evidence of PW-1 shows that the entire incident happened only because Raj and Tamilarasi stayed at Chengalpattu and after they came back, Raj committed suicide and there was a photograph of Raj and Tamilarasi, in the memory card which when demanded was not handed over to the deceased/mother of Tamilarasi. All these happened in September 2014. Thereafter, a clear three months later, the deceased and her son, PW-1 went over from their residence to Radhapuram, which was nearly about 30 km away. The house of the accused is also nearly around 20 km away from the place of the incident.
46.It is extremely improbable that on that particular date, on 02.01.2015, A1 and A2 would have started from their house with two aruvals under the seat of their motorcycle and proceeded 20 km to reach the exact place at the exact time when the deceased was also present in a place 30 km away from her house. This is all the more improbable, since none of the eye witnesses, who are residents in that particular place where the murder is said to have been committed, have spoken in support to the prosecution. They were all declared as hostile witnesses. 28/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020
47.It is stated that at 12.45 pm, A1 and A2 came in a motorcycle and attacked the deceased causing fatal injuries. The reasons for the deceased and PW-1 to be present at that place, was also a chance reason. They were present there, without any pre-plan in advance. It is the case of the prosecution and also of PW-1, that the deceased, being a Noon Meal Organizer, went to Radhapuram, 30 km away from her house to attend a meeting. The meeting was postponed. Incidentally, she was accompanied by PW-1, her son, who also went to Radhapuram on the same day to get a birth certificate of his daughter. The birth certificate could not be obtained. Thereafter, the two of them wanted to go over to the house of Petchiammal, PW-5, their relative and on the way, A1 and A2 knowing all these facts in advance, are said to have travelled beyond 20 km with two aruvals kept under the seat of their motorcycle, not to the Union office where the meeting was actually scheduled or to the Corporation office where the birth certificate was to be issued, but, to this particular road junction, where the deceased and PW-1 were making an unscheduled visit to their relative, PW-5, Petchiammal and then attacked the deceased. 29/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020
48.The evidence of PW-1 necessarily requires corroboration by further credible and acceptable evidence. He is an interested witness. He had also nurtured hostility against the accused, since the father of A1 is said to have taken away his younger sister, PW-7, Tamilarasi, and stayed with her for three days at Chengalpattu. There is no direct evidence of that allegation.
49.The conduct of PW-1 will have to be then examined. In the middle of the road, in the middle of the afternoon on 02.01.2015 when he was going along with his mother, A1 and A2 came on a motorcycle, intercepted them and indiscriminately cut the deceased on her head, on her neck and on her hands. She collapsed in a pool of blood at that very place. PW-1 was her son. It is only natural that after A1 and A2 had fled away, after threatening him, he must have raised hue and cry. But, he calmly walked over to the Registrar Office at Radhapuram, caught hold of a document writer and dictated to him a complaint in Tamil which ran to 5 ½ fullscap pages and which would have taken considerable time to dictate and to write.
30/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020
50.The complaint was not of a person, who was in an agitated mind having just witnessed the death of his mother, but very graphic and in detail. It started with the motive of his younger sister and the father of A1 eloping and staying for three days in Chengalpattu and then proceeded to state about the suicide committed by the father of A1. He then proceeded to state about the quarrel between his mother, the deceased and A5, over the memory card containing the photograph of Raj and his sister, Tamilarasi and thereafter, it gave the reasons for both of them to be at that place and then, though the incident had happened in a few minutes, very graphically stated as to where A2 cut his mother and where A1 cut his mother. He also remembered the registration number of the motorcycle. He also stated that A2 had dropped an aruval at that very place.
51.All these facts could never be dictated by a person in an agitated mind, who had just witnessed the murder of his mother. It is highly probable that the complaint had been written at a later stage. Even the hand writing is free and uninterrupted. There are no mistakes or no over-writing or no interpolation in the complaint. That particular document writer, to whom PW-1 had first narrated the incident, had not even been identified or 31/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 examined or steps taken to identify him by the Investigation Officer. We hold that is a very serious lacuna on the part of investigation.
52.It must also be stated that this evidence of PW-1 has to be examined in conjunction with the fact that all the other eye witnesses had been declared hostile. The only evidence available was the evidence of PW-1. The improbability of the incident and of A1 and A2 being present at that place and PW-1 reducing the complaint in writing and dictating it before a document writer stare at the face of the case of the prosecution. We hold that PW-1 cannot be termed as a reliable evidence.
53.In AIR 1957 SC 614, in the case of Vadivelu Thevar and another
-vs- State of Madras, the Hon'ble Supreme Court while examining the case of solitary witness, held as follows:
"11.......Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12.In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to 32/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. .........................."
(Emphasis supplied)
54.In the instant case, the prosecution had relied only on the evidence of PW-1. His evidence is neither wholly reliable nor wholly unreliable. The prosecution had not investigated about the strange circumstance of the presence of both the deceased and PW-1, 30 km away from their house. The reasons given by PW-1 had not been investigated by the respondent. The reasons given were that the deceased had a meeting, since she was a Noon Meal Scheme Organizer. No evidence had been produced or no witnesses had been examined to speak that there was actually a meeting on that date and at that place. More importantly, PW-1 had stated that he had gone to get the birth certificate of his daughter. Again, no evidence had been produced or no witnesses had been examined to speak that this reason given by PW-1 was correct and that he was actually at that place only for getting the birth certificate of his daughter. Moreover, PW-1 was an employee in TVS company as a Mechanic. No investigation had been conducted, as to 33/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 whether that fact was correct and whether on that particular date, he had gone to his work place or not.
55.It is also to be seen that the deceased and PW-1 were nearly 30 km away from their house. At the same time, A1 and A2 had travelled about 20 km from their house, carrying two aruvals under the seat of the motorcycle. No investigation had been done on this particular coincidence of the presence of the accused and the deceased and PW1 in a strange place in the middle of the afternoon on a working day. No investigation has been done to verify whether the presence of the deceased and PW-1 had been informed to A1 and A2. No investigation has been done to even determine whether A1 and A2 had a mobile phone and whether they were so informed.
56.Further, immediately after the incident, PW-1 had not called upon those who were there to assist him to take the body of his mother to the hospital, but rather he walked away to the Registrar Office, dictated a complaint in Tamil for 5½ fullscap pages. That was written down by a stranger and thereafter, the complaint was lodged before the Police Station. That particular individual, who had written down the complaint, had not 34/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 been examined and had not even been identified. All these points would go to show that PW-1 cannot be termed as a wholly reliable witness.
57.It is also to be noted that all the other eye witnesses had turned hostile.
58.In Bibin Kumar Mondal vs State of West Bengal reported in (2010) 12 SCC 91, when the Hon'ble Supreme Court had examined the sole testimony of a witness, the following observations has been made:
31.In Sunil Kumar v. State (Govt. of NCT of Delhi) [(2003) 11 SCC 367 : 2004 SCC (Cri) 1055] this Court repelled a similar submission observing that : (SCC p. 371, para 9) “9. … as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable.
There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration.” In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
59.In the instant case, since we hold that PW-1 is not a wholly reliable witness, his evidence must be corroborated, but all other eye- 35/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 witnesses had deposed adverse to the prosecution and were declared hostile.
60.Thus, the conviction of A1 and A2 in the instant case, particularly in the absence of any corroboration, cannot be sustained only on the evidence of PW-1.
61.It is the further case of the prosecution that the blood stains from the cloth of the accused were compared and it was found to be a match of the blood group of the deceased. This is the only fact which links the accused to the deceased.
62.It is to be noted that mere matching of blood group itself cannot not be a sufficient cause to convict the accused.
63.In Sonvir alias Somvir vs State (NCT of Delhi) reported in (2018) 8 SCC 24, the Hon'ble Supreme Court held as follows:
"26.3.Alleged recovery of bloodstained shirt .....
26.3.3.It is relevant to note that as per the FSL report (Ext. PW 33/A), both the bloodstained shirt allegedly recovered from Sonvir alias Somvir (Appellant-Accused 2) and the blood samples taken from the bedsheet at the scene of crime were found to be 36/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 stained with human blood of “B” group.
26.3.4.The mere matching of the blood group of the blood samples taken from the bedsheet at the scene of crime, and the bloodstained shirt recovered from Sonvir alias Somvir (Appellant- Accused 2) cannot lead to the conclusion that the appellant had been involved in the commission of the crime.
26.3.5.On this issue, reliance can be placed on two decisions of this Court in Prakash v. State of Karnataka [Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642] , paras 41 and 45 and Debapriya Pal v. State of W.B. [Debapriya Pal v. State of W.B., (2017) 11 SCC 31 : (2017) 3 SCC (Cri) 832] , para 8 wherein this Court while deciding cases based on circumstantial evidence had held that mere matching of the blood group cannot lead to the conclusion of the culpability of the accused, in the absence of a detailed serological comparison, since millions of people would have the same blood group.
26.3.6.In the present case, the prosecution has not proved that the room from where the bloodstained knife and bloodstained shirt were allegedly recovered, was in the exclusive possession of the appellant. The prosecution case is that the said room was in the house owned by one Teja Chaudhary. The prosecution did not examine the said Teja Chaudhary to prove that the said room was rented to Sonvir alias Somvir and/or was in the exclusive custody of the appellant.
26.3.7.Therefore, the recovery of the bloodstained shirt from Sonvir alias Somvir (Appellant-Accused 2) cannot be used as an incriminating piece of evidence."
64.In the instant case, more alarmingly, even if the evidence of PW-1 is to be taken into consideration, he had stated that A2 had dropped his aruval at that place, while fleeing. The aruval had been seized. It is MO-3. That had not been subjected to analysis. It would have contained the fresh blood of the deceased. Further, even though there was blood splattered on 37/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 the shirt and pant of PW-1, which he himself spoke about and which he was wearing, even when he lodged the complaint before PW-17, Special Sub Inspector, Radhapuram Police Station, his shirt or pant were not seized by the respondent and that blood was not subjected to forensic examination. All these points would go to show that reliability cannot be placed on the evidence of PW-1 or on the fact of blood stains in the material objects, which matched with the blood group of the deceased. That cannot be a factor to hold that the accused had committed murder.
65.While analysing the evidence in totality, we are convinced that the case projected by the prosecution creates doubts relating to the involvement of A1 and A2. It is held that suspicion however strong cannot be the basis for proof.
66.In Ashish Batham vs State of Madhya Pradesh reported in (2002) 7 SCC 317, it had been held as follows:
"8.Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of 38/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between “may be true” and “must be true” and this basic and golden rule only helps to maintain the vital distinction between “conjectures” and “sure conclusions” to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
67.In view of the above reasons, we hold that the prosecution had not proved the case beyond reasonable doubt as against the appellants herein/A1 and A2 and it will not be safe to convict the accused and that, they are entitled for the benefit of doubt.
68.We therefore set aside the judgment of conviction and sentence rendered by the IV Additional Sessions Court, Tirunelveli in S.C.No.502 of 2015, dated 12.10.2020 and acquit the appellants herein/A1 and A2 of all the charges. The appellants are to be set at liberty forthwith, unless their detention is required in connection with any other case. The bail bonds 39/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 executed, if any, shall stand cancelled. The fine amounts, if any paid, shall be refunded to the appellants.
[C.V.K., J.] & [J.S.N.P., J.]
22.08.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
To
1.The IV Additional Sessions Judge, Tirunelveli.
2.The Superintendent, Central Prison, Palayamkottai.
3.The Inspector of Police, Radhapuram Police Station, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5.The Section Officer, ER/VR Section, Madurai Bench of Madras High Court, Madurai.
40/41 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.347 of 2020 C.V.KARTHIKEYAN, J.
AND J.SATHYA NARAYANA PRASAD, J.
cmr Judgment made in Crl.A(MD)No.347 of 2020 22.08.2024 41/41 https://www.mhc.tn.gov.in/judis