Madras High Court
Anumuthu vs Inspector Of Police on 26 February, 2003
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, A.K. Rajan
JUDGMENT M. Karpagavinayagam, J.
1. Anumuthu, the appellant herein, was convicted for the offence under Section 302 I.P.C. for having killed his younger brother Tirupathi by means of a wooden rice pounder. Challenging the same, this appeal has been filed.
2. The case of the prosecution in brief is as follows:
(a) Anumuthu, the accused, is the elder brother and Tirupathi, the deceased, is the younger brother. During partition, the accused and the deceased got 2 acres of land each. There was a common well for irrigation of both the lands of the accused and the deceased. The well and the pump-set are within the land of the accused. When the deceased wanted to irrigate his land through the common well, which is situate in the land of the accused, the accused objected to the same. Due to the long misunderstanding between these two families, two cases were registered against both the parties as seen from Exs.P-16 and P-17 and those criminal cases were pending.
(b) On 16.2.1997 at about 4.00 P.M., the deceased questioned the accused as to why he was not being permitted to use the common well for irrigating his land. The accused abused him stating that he was not allowing him to use the water from the common well, as it is situated in his land. With regard to that, there was a wordy quarrel between them. P.W.3 Murugan and other villagers intervened and separated both the parties. At that time, the accused challenged that he would finish him once for all in the same night itself.
(c) At about 8.00 P.M., having got afraid that the deceased would be done away with, P.W.2 Muniammal, the wife of the deceased, advised her husband to come along with her so that they could stay for some time at Ezhuaruvi village where her parents were residing. Accordingly, the deceased Tiupathi accompanied by P.W.2 Muniammal, one Madhu (brother of P.W.2), and P.W.3 Murugan was proceeding towards Ezhuaruvi village.
(d) When they crossed about 150 feet from the residence, the accused suddenly appeared in the scene with M.O.5 wooden rice pounder and attacked the deceased by causing injury on his left cheek. When the deceased fell down, the accused again beat him on the back side of his head. When the witnesses cried aloud, the accused ran away with M.O.5. P.Ws.2 and 3 and Madhu came near the deceased and found the deceased dead. Since it was a night time, they were not able to go to the Police Station, as bus was not available.
(e) On the next day morning, P.Ws.2 and 3 went to Bommikuppam village and gave Ex.P-1 complaint to P.W.1 Village Administrative Officer. After recording the complaint, P.W.1 came to the spot and found the dead body of the deceased and thereafter, he prepared Ex.P-2 report and went to the Police Station. On the basis of the complaint Ex.P-1 and the endorsement report Ex.P-2, P.W.12, the Inspector of Police, registered a case under Section 302 I.P.C. Ex.P-20 is the F.I.R.
(f) At about 10.30 A.M., P.W.12 came to the scene and prepared observation mahazar and rough sketch. He recovered blood stained earth and sample earth, cycle, etc. He conducted inquest and during the course of inquest, he examined P.Ws.1, 2 and 3 and Madhu, the brother of P.W.2. Ex.P-2 is the inquest report. Thereupon, the body was sent for post-mortem.
(g) P.W.6 Doctor conducted post-mortem and found six injuries on the body of the deceased. Ex.P-10 is the post-mortem certificate and the Doctor opined that the death would be due to loss of blood and shock due to multiple injuries sustained. Then, P.W.12 recovered the blood stained clothes of the deceased. He also took steps to arrest the accused.
(h) On 20.2.1997, the accused apprehending arrest by the police went and surrendered before P.W.4 Village Administrative Officer, Madapalli and gave an extra-judicial confession. Ex.P-5 is his confession statement. After obtaining the signature of the accused, P.W.4 produced the accused along with Ex.P-6 forwarding endorsement to P.W.12 Inspector of Police.
(i) Then, on his confession, M.O.5 wooden rice pounder was recovered in the presence of P.W.9. Then, P.W.12 made arrangement for sending the material objects for chemical examination. After completing the investigation, P.W.12 filed the charge sheet against the accused for the offences under Sections 341, 302 and 506(ii) I.P.C.
3. During the course of trial, the prosecution examined P.Ws.1 to 12, filed Exs.P-1 to P-22 and marked M.Os.1 to 12.
4. When the accused was questioned under Section 313 Cr.P.C., he denied having committed the offence and said that the deceased already sold his right in the well for Rs.2,000/- and subsequently, the accused deepened the well by spending a considerable amount and got electricity connection for the well and despite having relinquished his right, the deceased asked for a share in the well water and since the accused refused to allow him to take water from the well, a false case has been foisted against him.
5. The trial Court, on appraisal of the evidence available on record, though acquitted the accused in respect of the offences under Sections 341 and 506(ii) I.P.C., convicted the accused for the offence under Section 302 I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs.1,500/-.
6. While assailing the judgment of conviction, Mr. V. Karthic, the learned counsel appearing for the appellant, would contend that P.Ws.2 and 3, the eye-witnesses, would not have been present at the time of the occurrence and the evidence of those eye-witnesses would suffer from various infirmities and the extra-judicial confession given by the accused to P.W.4 cannot be believed, since the same was recorded after commencement of the investigation and the very fact that no steps had been taken by P.Ws.2 and 3 to give a complaint to the police immediately after the occurrence, would indicate that the occurrence would not have been witnessed by P.Ws.2 and 3 and as such, the appellant is entitled to be acquitted.
7. On these aspects, we heard Mr. E. Raja, the learned Additional Public Prosecutor.
8. On a careful scrutiny of the entire materials, we are of the view that the evidence of P.Ws.2 and 3 eye-witnesses cannot be said to be above reproach and beyond suspicion. According to P.W.2, the first occurrence took place at 4.00 P.M. in which there was a wordy quarrel between the deceased and the accused. Though in Ex.P-1 statement given by P.W.2, it is mentioned that P.W.3 was present at the time when the incident took place at 4.00 P.M., she has not spoken to about the presence of P.W.3 at that time.
9. The motive for the occurrence is that the deceased was not allowed to exercise his right of taking water from the common well and therefore, the quarrel started between the accused and the deceased. The case of the defence is that the deceased had already sold his right in taking water from the common well by receiving a sum Rs.2,000/- from the accused and when the deceased tried to take water from the well, the same was objected to by the accused and therefore, a false case has been foisted against him. As a matter of fact, P.W.2 stated to the police that the deceased received Rs.2,000/- from the accused for having sold the right of taking water from the common well. Therefore, the motive aspect projected by P.W.2 before the Court cannot be accepted as her statement earlier made before the police is quite contradictory to the present stand taken before the Court.
10. According to P.Ws.2 and 3, both were present at the time of occurrence. It is their case that P.Ws.2 and 3, the deceased and one Madhu, the brother of P.W.2, were proceeding towards the village Ezhuaruvi and at that time, the accused came and accosted the deceased and attacked him causing his instantaneous death. It is an admitted case that P.W.2 is acquainted with the Court proceedings and the Police Station. P.W.2 herself stated in cross-examination that she went to jail in connection with arson cases and came out on bail. The evidence of P.Ws.9, 10 and 11, the Police Officers coupled with Exs.P-16 and P-17 would clearly show that P.W.2 and the deceased were the accused in the criminal cases. Apart from that, she admitted that a civil case is pending between the parties with reference to the dispute in question. In such an event, it is not understandable as to why P.W.2 kept quiet till next day morning, even though the occurrence had taken place at about 8.00 P.M. on 16.2.1997.
11. It has been elicited from both P.Ws.2 and 3 that P.W.3 is the person who used to help the deceased for engaging Advocate and for conducting civil and criminal proceedings on their behalf. It is also culled out from both the witnesses that P.Ws.3 is staying just in front of Thiruppathur Taluk Police Station. When such is the case, the normal conduct of a person would be either to go to the Police Station immediately or at least to go to V.A.O. to give a complaint about the occurrence.
12. Though an explanation has been given by P.Ws.2 and 3 through Ex.P.1 and in her evidence about the non-availability of bus, it has been elicited from the witnesses that there is telephone facility available in Bommikuppan village which is just 3 k.m. away from the scene of occurrence. It is also noticed from the evidence of P.W.3 that he went to Ezhuaruvi village from Thiruppattur and left his TVS-50 and came to the scene village in the evening. If P.W.3 actually had witnessed the occurrence, he would have rushed to Ezhuaruvi village situate 2 k.m. from the scene of occurrence and taken the TVS-50 from Ezhuaruvi village and gone to Thirupattur Police Station to give a complaint.
13. Further, P.W.2 herself would admit that so many persons numbering about more than 10 came from Ezhuaruvi village and also from other villages and passed through by 9.00 P.M. Admittedly, Madhu, the brother of P.W.2, who was one of the eye-witnesses, was present there and P.W.3 was also present there. When these men folk were there and other men folk from other villages were passing through, there was no reason to P.W.2 to keep quiet till next day morning.
14. Furthermore, P.W.2 gave a complaint to P.W.1 at about 7.00 A.M. on 17.2.1997. According to P.W.1, after recording the complaint, he prepared Ex.P-2 report and came to the spot and saw the dead body and thereafter, he went to the Police Station. But, in cross-examination he would state that after preparing Ex.P-1 complaint, he came to the spot and verified that the said facts are true by noticing the dead body and then Ex.P-2 report was prepared. Unfortunately, the fact of having gone to the spot and inspected the body has not been mentioned in Ex.P-2 report.
15. So, all these things would make it clear that in order to explain the delay, P.W.1 has been introduced to say that he received Ex.P-1 complaint from P.W.2 and then went to the Police Station and gave Ex.P-1 complaint along with Ex.P-2 report to P.W.12 Inspector of Police at about 9.00 A.M. So, the delay between 8.30 P.M. at which the occurrence had taken place and 9.00 A.M. at which the complaint was received by the Police Officer, in our view, has not been properly explained. On the other hand, it can be certainly stated that the explanation given by P.W.1 for the said delay cannot be accepted to be true.
16. The prosecution has projected one more piece of evidence, namely, the extra-judicial confession Ex.P-5. As pointed out by the learned counsel for the appellant, this evidence has been rejected by the trial Court itself on the reason that the investigation had already been started. Apart from that, we may add some more reasons to reject Ex.P-5.
17. According to P.W.2, the occurrence took place on Sunday and within 3 days, she came to know that the accused was caught and M.O.5 weapon was shown to her on Wednesday. This is quite contrary to the evidence of P.W.12 and P.W.4. According to P.Ws.4 and 12, the accused was arrested on Thursday and the weapon was recovered. Therefore, we are not able to give any importance to the evidence of P.Ws.4 and 12 and Ex.P-5. It is also noticed that P.W.4 would admit in cross-examination that he is utter stranger to the accused. Under those circumstances, we are unable to believe the version of P.W.4 that the accused had gone to P.W.4's place and given extra-judicial confession.
18. Under those circumstances, the evidence adduced by P.Ws.2 and 3 with regard to the participation of the accused in the crime, in our opinion, cannot be accepted to be trustworthy and consequently, we have to hold that the accused would be entitled to be given the benefit of doubt.
19. In the result, the appeal is allowed, setting aside the conviction and sentence imposed upon the appellant/accused by the trial Court and he is directed to be set at liberty forthwith, unless he is required in connection with any other case. The fine amount, if paid, by the appellant/accused shall be refunded.