Madras High Court
Irul vs State on 23 November, 2006
Author: K.N. Basha
Bench: Prabha Sridevan, K.N. Basha
JUDGMENT K.N. Basha, J.
1. The sole accused, Irul, has come forward with this appeal challenging his conviction and sentence passed by the learned Second Additional Sessions Judge, Madurai, in S.C. No. 362 of 2000, dated 8-1-2002 convicting him under Section 302, I.P.C. and sentencing him to undergo life imprisonment and also imposing a fine of Rs. 100/-, in default, to undergo two weeks simple imprisonment and also convicting him under 5. 341, I.P.C. and sentencing him to undergo two weeks simple imprisonment.
2. The facts of the case, as unfolded by the prosecution witnesses, arc as follows:
(i) P.W. 1 is the mother of the deceased. P.W. 2 is the brother of the deceased. P.W. 4 is the employer of the accused and the deceased, as both of them were working as loadmen under his lorry service.
(ii) On the date of occurrence, i.e. on 9-11-1999 in the evening there was a quarrel between the accused and the deceased as the deceased requested the accused to get his weekly wages and keep the same with him and when the deceased demanded the return of that amount from the accused which resulted in a wordy quarrel between them. This incident happened at 5.30 p.m. The deceased returned to his house and also informed his mother about the wordy quarrel between him and the accused regarding return of the wages obtained by the accused from his employer, P.W. 4 on his behalf. P.W. 2 another son of P.W. 1 also came to the scene village on the eve of Deepavali. When P.W. 2 leaving the village, P.W. 1 requested him to accompany with her for the irrigation of the field. After taking food in their house at 9.30 p.m., P.Ws. 1 and 2 and the deceased left for their field for irrigation. On their way, P.Ws. 1 and 2, were purchasing battery light cell from the shop of one Mesenem. At that time, they heard the hue and cry of the deceased, stating that Machakalai son, accused-Irul. stabbed him and running away from the scene. P.W. 1 stated that they were standing 20 feet away from the scene of occurrence. P.W. 1 also stated that lube light was burning at that time when both P.Ws. 1 and 2 rushed there, they found the accused running with weapon knife, M.O. 2. P.W. 1 asked her another son P.W. 2 to see the deceased and they found a stab injury on the chest of the deceased. The deceased died instantaneously. Thereafter, P.W. 1 asked P.W. 2 to remain there and left for the police station to give a report.
(iii) One Mahalingam, Sub-Inspector of Police, attached to Karuppayurani Police Station recorded the statement of P.W. 1 under Ex.P.1 and registered the case at 11.30 p.m. in Crime No. 559 of 1999 under Sections 341 and 302, I.P.C. The abovesaid Sub-Inspector of Police, Mahalingam, who has recorded the statement is no more.
(iv) P.W. 11, the Inspector of Police, received the message about the occurrence at 11.30 p.m. on 9-1-1999. He has also received the Express First Information Report, Ex. P. 12 and reached the scene of occurrence at the early morning 00.30 hours. He prepared the observation Mahazar, Ex. P.2 in the presence of P.W. 3 and another. He also prepared the Rough Sketch, Ex. P. 13. He held inquest on the dead body of the deceased and during inquest he has examined P.Ws. 1 and 2 and others. Ex. P. 14 is the inquest report. He recovered the clothes of the deceased from the body in the presence of P.W. 3 and another. He also examined P.W. 3 and others and recorded their statements.
(v) P.W. 5, the Doctor, attached to Government Rajaji Medical College Hospital received the requisition under Ex.P.4 for conducting post-mortem on the dead body of the deceased on 10-11-1999 at 10.00 a.m. and thereafter he has conducted postmortem on the body of the deceased at 10.15 a.m. He found the following injuries:
Injury No. 1 : A vertically oblique stab injury on the front of left chest 4 cms. medial to the left nipple measuring 4 cm. x 1 cm. x entering into the left pleural cavity - upper end curved, lower end pointed, margins regular.
On Dissection : The wound passes obliquely downwards, backwards, entering the left cavity cutting the 3rd rib and the adjoining intercostal muscles, vessels, nerves and the upper lobe of the left lung 3.5 cm. x 0.5 cm. x through and through. Left pleural cavity contains 1100 ml. of blood with clots. Right pleural cavity empty.
Injury No. 2 : Abrasion outer aspect of right eyebrow 2 cm. x 1.5 cm.
Other findings : Peritoneal cavity - empty; Pleural cavity - described in injury column; Pericardium - 10 ml. of straw colured fluid. Heart - Normal size - chambers empty; Lungs - Left lung - described in injury column, right lung - cut section pale. Hyoid bone - intact; stomach - 50 ml. of mucosal fluid - so specific smell, mucose - pale; liver, spleen and kidneys - cut section - pale; small intestine - 50 ml. of bile stained fluid, no specific smell, mucosa - pale; Bladder - empty; Brain - surface vessel, cut section - pale.
Ex. P.5 is the post-mortem certificate. The Doctor opined that the deceased would appear to have died of shock and haemorrhage due to stab injury to the left chest and its corresponding internal injuries, 12 to 16 hours prior to autopsy.
(vi) P.W. 11, in continuation of his investigation examined P.W. 4, the employer of the deceased and the accused and recorded his statement on 11-11-1999. He has examined the Doctor, P.W. 5, who has conducted post-mortem and recorded his statement on 16-11-1999. On 23-11-1999, he was informed that the accused was surrendered before the Judicial Magistrate Court, Sivagangai. He has filed a petition for taking the accused under the police custody on 24-11-1997. After taking the custody of the accused, in pursuance of the admissible portion of the confession under Ex. P.6, P.W. 11 recovered M.O. 2, knife, in the presence of P.W. 6 under Ex. P.7. Thereafter he has remanded the accused for judicial custody. On 11-12-1999, he has examined P.W. 8 by name Veerarajari and recorded his statement. On the same day, he has sent the material objects to the Magistrate Court with a requisition to send the same for chemical examination. After receiving the postmortem certificate, Ex. P.9, Chemical Examination report, Ex. P. 10, and the Serologist report, Ex. P. 11 and after completion of the investigation he filed the charge-sheet against the accused on 21-12-1999 under Sections 341 and 302, I.P.C.
3. The prosecution, in order to substantiate its case, examined P.Ws. 1 to 11, filed Exs. P. 1 to P. 14 and marked M.Os. 1 to 5.
4. When the accused was questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating circumstances appearing against him through the evidence adduced by the prosecution, he has come forward with the version of total denial and stated that he has been falsely implicated in the case.
5. Mr. A. P. Muthupandian, learned Counsel appearing for the appellant contended that the prosecution has miserably failed to prove its case by adducing clear, cogent and convincing evidence. It is submitted by the learned Counsel for the appellant that the evidence of P.Ws. 1 and 2 are unbelievable and they could not have witnessed the actual occurrence at all. It is further submitted by the learned Counsel for the appellant that the materials available on-record clearly shows that the witnesses, P.Ws. 1 to 3, could have come to the scene only after the occurrence and they could not have been present at the scene and witnessed the occurrence and also they could not even see the accused running after the occurrence. The learned Counsel for the appellant pointed out certain infirmities in their version. As far as P.W. 3 is concerned, his name is also not mentioned in the report, Ex. P. 1. The learned Counsel contended that P.W. 1 claimed that she went to the police station and gave a report which was recorded by the police at 11.30 p.m. but in her cross-examination she has categorically admitted that the police carne to the scene and thereafter recorded her statement and obtained her signature. It is pointed out by the learned Counsel for the appellant that this version of P.W. 1 is also corroborated by the version of P.W. 3 that he along with P.Ws. 1 and 2 was very much present at the scene till the arrival of the Inspector of Police and only after the arrival of the Inspector, the statement of P.W. 1 was recorded. Therefore, it is submitted by the learned Counsel for the appellant that no sanctity could be attached to the report, Ex. P. 1 in this case and further this admitted version of P.Ws. 1 and 3 clearly shows that witnesses P.Ws. 1 to 3 could not have been present at the time of the actual occurrence.
6. The yet another contention put forward by the learned Counsel for the appellant is that according to P.W. 1, all of them including P.W. 2 and the deceased left the house for irrigation at 9.30 p.m. only after taking food. But the Doctor, P.W. 5 has categorically admitted in his cross-examination that he has not found any food particles in the intestine or stomach of the deceased. It is further pointed out by the learned Counsel for the appellant that the Doctor also stated if anyone takes food, it will take 5 to 6 hours for digestion. Therefore, it is submitted by the learned Counsel for the appellant that even the occurrence could not have been taken place at the time as alleged by the prosecution. Therefore, the learned Counsel for the appellant contended that the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused.
7. Per contra, learned Additional Public Prosecutor submitted that the prosecution has come forward with a clear and cogent version through the evidence of P.Ws. 1 to 3. It is also contended by the learned Additional Public Prosecutor that the evidence of P.Ws. 1 to 3 is also corroborated by the medical evidence as the Doctor who conducted post-mortem found the corresponding injury on the chest of the deceased. The learned Additional Public Prosecutor submitted that there is also no delay in giving the report to the police and also the First Information Report reaching the Magistrate Court as the same reached the Court within a reasonable time. Therefore, it is contended by the learned Additional Public Prosecutor that the prosecution has proved its case by adducing acceptable evidence.
8. We have given our careful and anxious consideration to the rival submissions made by both sides.
9. The prosecution In this case heavily placed reliance on the evidence of P.Ws. 1 to 3. The motive put forward by the prosecution is that both the accused and the deceased were working as loadmen under P.W. 4 who is running lorry service. It is further alleged that there was some misunderstanding between the accused and the deceased as the deceased requested the accused to get his wages and keep it with him and when he demanded the return of the same, the accused refused to give the amount and as a result, there was a wordy quarrel prior to the time of occurrence at 5.00 p.m. Though P.W. 4, the so-called employer of the accused and the deceased, turned hostile, P.Ws. 1 to 3 have been spoken about the misunderstanding and a wordy quarrel on the fateful date of occurrence between the accused and the deceased regarding the return of wages of the deceased.
10. P.Ws. 1 and 2 have simply stated that they were informed by the deceased about the quarrel between the deceased and the accused regarding the return of wages. P.W. 1 has also admitted that she is not having direct knowledge about the same and only P.W. 3 stated about the earlier quarrel between the accused and the deceased regarding the return of wages and pacified them. It is also pertinent to note that P.W. 1 has admitted that except the misunderstanding between the accused and the deceased regarding the wages, there is absolutely no enmity between them. Therefore, the prosecution has not put forward any immediate, proximate and strong motive against the accused to commit the offence.
11. Regarding the actual occurrence, we are left with the evidence of P.Ws. 1 and 2. Though P.W. 3 also claimed that he has come to the scene subsequently and alleged to have seen the accused running with the weapon, his name is not found in the report Ex. P. 1. The fact remains that P.Ws. 1 and 2 are closely related to the deceased as mother and brother and as such they are the interested witnesses and, therefore, we have to analyse and scrutinise their evidence with care and caution.
12. As rightly pointed out by the learned Counsel for the appellant, P.W. 1 claimed that she went to the police station and gave a report to the Sub-Inspector of Police. But she has categorically admitted in her cross-examination that only after the arrival of the police at the scene her statement was recorded by the police and only at that time she has signed the statement. This version of P.W. 1 is corroborated by the version of P.W. 3 to the effect that P.W. 3 went to the extent of stating that P.Ws. 1 and 2 and himself after the occurrence were simply waiting at the scene of occurrence till the arrival of the Inspector of Police and only thereafter the Inspector recorded the statement, Ex. P.1, from P.W. 1 at the scene itself. Therefore, in view this admitted version of P.Ws. 1 and 3, it is made very clear that Ex. P. 1 is not a genuine document and the same could not have been recorded at the time as alleged by the prosecution. It also throws serious doubt about the veracity of the version of P.Ws. 1 to 3 about their presence either at the time of actual occurrence or after the occurrence.
13. As far as P.W. 2 is concerned, he is admittedly residing in a different village and he has come to the scene village just 2 days prior to the occurrence on the eve of Deepavali and when he told P.W. 1, his mother, that he has to leave for his place at 6.00 p.m., he claimed that he was requested by P.W. 1, his mother, to remain in the village for irrigation of the field. But he has not stated during his examination by the police that he was asked by his mother, P.W. 1, to remain at the village for the purpose of irrigation. It is also pertinent to note that Ex. P. 1, the report said to have been given by P.W. 1, is also not attested by P.W. 2. Therefore, the version of P.W. 2 is highly doubtful and he could not have been present at all at the time of occurrence.
14. The accused running away from the scene with weapon immediately after the occurrere and possibility of all these witnesses, P.Ws. 1 and 3 could have come to the scene only after the occurrence after hearing the hue and cry of the deceased could not be ruled out.
15. The yet another infirmity in the prosecution case is that the non-examination of Mesanam who was running a shop 20 feet away from the scene of occurrence as per the claim of P.Ws. 1 and 2. It is further claimed by P.Ws. 1 and 2 that they have purchased battery light cell from the said Masanam. We are of the considered view that the said shop owner Masanam is the competent person to speak about the actual occurrence and to speak about the presence of these witnesses, P.Ws. 1 and 2. If really P.Ws. 1 and 2 present there and purchased battery light cell from the said Masanam and thereafter they have heard the hue and cry of the deceased, it could have also attracted the said Masanam who would have also rushed to the scene. He is the crucial witness to speak about the presence of P.Ws. 1 and 2 just 20 feet away from the scene of occurrence where the shop of Masanam is situated. The prosecution has deliberately withheld the examination of the said Masanam and we are left with no other alternative except to draw adverse inference against the case of the prosecution under Section 114(g) of the Indian Evidence Act.
16. The yet another serious infirmity in the case of the prosecution is the evidence of the Doctor, P.W. 5, who has conducted post-mortem belies the case of the prosecution regarding the actual time of occurrence itself. It is the categorical version of P.W. 1 that only after all of them including the deceased taking food at 9.30 p.m., left the field for irrigation and the occurrence is said to have taken place at 9.45 p.m. But the Doctor, P.W. 5 admitted in his cross-examination that he has not found any food particles in the intestine of the deceased. It is further stated by the Doctor, P.W. 5 that if anyone takes food it will take 5 to 6 hours for digestion. This important piece of material available on record also raises serious doubt about the actual time of the occurrence.
17. Therefore, there are serious infirmities and inconsistencies in the prosecution case rendering the entire prosecution case as highly doubful. We are of the considered view that it is not safe to place reliance on the evidence of P.Ws. 1 to 3 to convict the accused/appellant herein.
18. For the foregoing reasons, the appeal is allowed. The conviction and sentence imposed on the appellant by the learned Second Additional District and Sessions Judge, Madurai, in S.C. No. 362 of 2000, dated 8-1-2002 is hereby set aside. Fine amount paid, if any, is directed to be refunded to the appellant.