Madras High Court
P.Tamil Selvan vs State Of Tamil Nadu on 25 September, 2012
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 25.09.2012 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA AND THE HONOURABLE MR. JUSTICE P.DEVADASS CRL.A.No.475/2011 P.Tamil Selvan .. Appellant / Accused Vs State of Tamil Nadu represented by The Inspector of Police Puduchatram Police Station, Namakkal District. [Crime No.496/2009] .. Respondent / Complainant ****** Appeal filed under section 374 [2] Cr.P.C., against the Judgment passed by the learned Additional District Judge, Fast Track Court, Namakkal in SC.No.90/2010 dated 11.01.2011. For Appellant : Mr.M.Ramalingam For Respondent : Mr.M.Maharaja Additional Public Prosecutor JUDGMENT
[Judgment of the Court was delivered by K.N.BASHA, J.] The appellant who is the sole accused has come forward with the above appeal challenging his conviction and sentence imposed by the learned Additional District Judge, Fast Track Court, Namakkal, by the judgment dated 11.01.2011 in SC.No.90/2010, convicting the appellant for the offence u/s.302 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.1,000/- and in default, to undergo one year rigorous imprisonment and convicting him for the offence u/s.324 IPC and sentencing him to undergo 1 year rigorous imprisonment.
2. The accused faced the trial under the following backdrop:-
[a] P.W.1 Sampoornam is the wife of the deceased Ponnusamy Chettiyar. The deceased was doing coolie work in the Ponkurichi Village. The accused also belongs to the same village. On the fateful day of occurrence, i.e., on 27.10.2009, at 7.30 p.m., P.W.1 was chatting with P.Ws.2 and 3 near Kottaikaruppan temple. At that time, the accused was seen in the provision shop run by P.W.5-Sadaiyandi Chettiyar. The accused had taken a bottle from the shop and broken the same. The said place is visible from the place where P.Ws.1 to 3 were chatting. At that time, the deceased questioned the conduct of the accused. The accused attempted to stab the deceased with a Suri knife [M.O.1]. P.W.2 intervened and at that time, the accused inflicted a stab on the right side of his neck which resulted in profused bleeding. Thereafter, the accused stabbed the deceased on the left chest with the same knife [M.O.1]. The deceased fell down and died instantaneously. The accused ran away from the scene with the knife.
[b] P.W.9, son-in-law of the deceased was informed over the phone about the occurrence and he came to the scene. P.W.1 narrated the occurrence to P.W.9 and P.W.9 reduced the same into writing in a paper and obtained the thumb impression of P.W.1. He also attested the said report. Thereafter, both P.Ws.1 and 9 went to the respondent Police Station to give the report.
[c] P.W.18, the Inspector of Police attached to the respondent Police Station received the report [Ex.P.1] from P.W.1 on 27.10.2009 at about 9.00 p.m. P.W.1 was accompanied by P.Ws.2 and 9. P.W.18, registered a case in Crime No.496/2009 for the offences u/s.324 and 302 IPC. Ex.P.14 is the Express FIR. He sent the same to the Magistrate and to the higher officials concerned.
[d] P.W.18, the Inspector of Police took up the investigation and sent P.W.2, the injured witness to the Government Hospital, Rasipuram with a Medical Memo for treatment. He went to the scene of occurrence and prepared the Observation Mahazar [Ex.P.2] and Rough Sketch [Ex.P.15] in the presence of witnesses. He also recovered blood stained earth and sample earth from the scene under Ex.P.16 and the same were not marked by the prosecution in this case. He also arranged a photographer to take photographs at the scene and the dead body. He held inquest on the dead body of the deceased in the presence of witnesses. Ex.P.17 is the Inquest Report. He sent the body for postmortem through the constable P.W.16. At the scene of occurrence, he examined P.Ws.1, 3,4, 5, 6, 7, 8, 10 and 11 and recorded their statements.
[e] Dr.Kumar, P.W.12, attached to the Government Hospital, Rasipuram, conducted Post-Mortem on the dead body of the deceased on 28.10.2009 at 9.25 a.m. as per the requisition. He found the following injuries:-
EXTERNAL INJURIES:-
1] A Lacerated injury of size 5 cm x 1 cm x bone deep over left side of chest near nipple.
2] Abrasion over left side abdomen size 4 cm x 5 cm .
Ex.P.5 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of shock and hemorrhage due to the injuries to vital organs, viz., heart and lung.
[f] Dr.Uma Maheswari, P.W.14 attached to the Government Hospital, Rasipuram, examined P.W.2 on 28.10.2009 and she found the following injuries under Ex.P.8 [Accident Register]:-
[1]Deep lacerated wound 2x1.5 cm in the right side of neck, bleeding.
[2]Abrasion 3x0.5 cm in the left back of the arm.
P.W.2 was referred to Government Mohan Kumaramangalam Medical College Hospital, Salem where he was treated by P.W.15-Dr.Ruby Pramila. The doctor opined that the injuries are simple in nature.
[g] P.W.18, the investigating officer in continuation of his investigation, arrested the accused on 28.10.2009 at 5.15 p.m. near Ponkurichi Erikaraivalaivu Panchayat Motor Room in the presence of VAO and his assistant. Pursuant to the confession statement of the accused, the admissible portion of which are marked as Ex.P.6, the investigating officer recovered M.O.1-Blood stained Suri Knife under Ex.P.7. The accused was produced before the court for judicial remand. He has given a requisition to the Magistrate Court for sending the material objects for chemical examination. Exs.P.10 to 13 are the Chemical Examination reports. P.W.18 also examined P.Ws.12, 14 and 15, the doctors who have conducted the postmortem and examined P.W.2 respectively and recorded their statements. After completion of the investigation, he filed the charge sheet against the accused for the offences u/s.302 and 324 IPC.
[h] The prosecution in order to bring home the charge against the accused, examined P.Ws.1 to 18, filed Exs.P.1 to 17 beside marking M.Os.1 to 5.
3. When the accused was questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused has come forward with the version of total denial and he has stated that he has been falsely implicated in the case. The accused has not chosen to examine any witness nor marked any documents on his side.
4. The learned Trial Judge, on consideration and appreciation of the evidence adduced by the prosecution, has found the accused / appellant guilty and convicted and sentenced him as stated above. Hence, the present appeal.
5. Mr.M.Ramalingam, learned counsel for the appellant, while assailing the impugned judgment of conviction, vehemently contended that the prosecution has not come forward with a clear, cogent and consistent version and the entire prosecution case suffers from serious infirmities and illegalities and the prosecution has miserably failed to prove its case beyond reasonable doubts against the appellant and put forward the following contentions:-
[1] The evidence of the alleged eyewitnesses to the occurrence, viz., P.Ws. 1 to 3 are unreliable and their evidence is contradictory to the material particulars.
[2] P.W.1 who is said to be the author of the report, Ex.P.1 has not supported the case of the prosecution and she has stated in the cross examination that she came to the scene only on hearing the death of her husband and further, she has stated that some unknown persons came in a motor bike and killed her husband.
[3] P.W.1 also came forward with a contradictory version regarding the report [Ex.P.1] given by her to the police. It is stated in the chief examination that she has narrated about the occurrence to P.W.9, her son-in-law which was written by him and thereafter, she has affixed her thumb impression and went to the Police Station and gave the report to P.W.18 along with P.Ws.2 and 9. But, in the cross examination, she has stated that police came to the scene of occurrence and recorded her statement and obtained her signature and also obtained the signature of P.W.2. But the present report, Ex.P.1 does not contain the signature of P.W.2.
[4] P.W.2, the injured eyewitness to the occurrence has not spoken anything about the accused stabbing the deceased and he has stated only about the injury caused by the accused on him. He has stated in his cross examination that he swooned after sustaining injuries and after regaining consciousness, he found police officials and VAO in the scene and as such, his evidence is also unreliable and further, his version falsifies the prosecution case. P.W.2 though has stated in the chief examination that the accused chased the deceased with the Suri knife, he has not stated so during the course of investigation to P.W.18.
[5] The evidence of P.W.3, the other eyewitness to the occurrence, is also unreliable as he has stated in the cross examination that the police came to the scene at 8.00 p.m. itself, i.e., much earlier to the report [Ex.P.1] reaching the police station, viz., at 9.00 p.m. and he has not stated anything about the arrival of P.W.9 and thereafter, going to the Police Station to give the report and as such, the presence of P.W.3 in the scene of occurrence is highly doubtful.
[6] P.W.3 has stated that after the occurrence, he simply left to his house and as such, his conduct is unnatural and it is also doubtful whether he could have been examined on the date of occurrence by the police.
[7]The alleged recovery of M.O.1-Suri knife at the instance of the accused is also unbelievable as it is categorically stated by P.Ws.1 to 3 to the effect that the police arrived at the scene and found the accused with the knife in front of his house and arrested him and as such, the arrest and recovery on the next day, i.e., on 28.10.2009 is unbelievable.
6. Per contra Mr.M.Maharaja, learned Additional Public Prosecutor contended that the prosecution has established its case by adducing clear and consistent evidence through the eyewitnesses, P.Ws.1 to 3. It is contended that though P.W.1 has given certain contradictory version in the cross examination, she has categorically stated about the occurrence and implicated the accused in the chief examination. It is further contended that the evidence of P.W.2 cannot be discarded merely because, he has not spoken about the accused stabbing the deceased. But, he has stated that the accused has chased the deceased with knife and as such, the presence of the accused at the time of occurrence is proved through the version of P.W.2. He would also contend that the evidence of P.W.3 is clear and cogent and there is no serious infirmity in the evidence of P.W.3 as pointed out by the defence. It is further contended that the version of the eyewitnesses is also corroborated by the medical evidence through the doctor P.W.12, who has conducted the Post Mortem on the dead body of the deceased as she has found the corresponding injuries on the dead body as per the overt acts alleged against the accused. It is also submitted that the version of P.W.2 is also corroborated by the medical evidence through P.W.14, the doctor who has treated P.W.2 and found corresponding injuries on P.W.2.
7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the entire evidence available on record and perused the impugned Judgment of conviction.
8. At the outset, we are constrained to state that the entire prosecution case suffers from serious infirmities, inconsistencies and inherent improbabilities. Though the prosecution has chosen to examine P.Ws.1 to 3 as the eyewitnesses to the occurrence, the fact remains that their evidence is most untrustworthy and unreliable. P.W.1 who happens to be the wife of the deceased also has not come forward with a clear, consistent and cogent version. On the other hand, her evidence is not only self-contradictory but also contrary to the very version of the prosecution. It is pertinent to note that P.W.1 has categorically admitted in her cross-examination that she came to the scene of occurrence only after hearing the death of her husband and as such, it is crystal clear that she could not be an eyewitness to the occurrence. It is also stated by her in the cross-examination that some unknown persons came in a motor cycle and they have stabbed the deceased and as such, the evidence of P.W.1 is unbelievable and unreliable. Added to such infirmity, it is seen that the version of P.W.1 clearly shows that Ex.P.1 is not a genuine document. P.W.1 though claimed in the chief examination that after the occurrence, P.W.9-her son-in-law, was informed over the phone and after his arrival, she has narrated about the occurrence to him which was written by him and thereafter, she has affixed her thumb impression and went to the Police Station along with P.Ws.2 and 9 and gave the report [Ex.P.1] to P.W.18, her version is completely contrary in the cross examination. It is clearly and categorically stated by her in the cross-examination that the police came to the scene of occurrence and only at the scene, they have written the report and thereafter, the police obtained her signature and also the signature of P.W.2. The said version is also substantiated by the version of P.W.9 as he has stated that on hearing the occurrence, he came to the scene and at that time, police were very much present near the dead body. The version of P.W.2 in the cross-examination also shows that he swooned after sustaining injuries on his body and after regaining consciousness within 20 minutes, he found the police and VAO at the scene of occurrence.
9. P.W.3, another eyewitness to the occurrence has categorically stated in his chief examination that the police was informed over the phone about the occurrence and they arrived at the scene. It is further stated by him in the cross-examination that the police arrived at the scene at 8.00 p.m. itself. All the above said versions of P.Ws.1 to 3 makes it crystal clear that the possibility of recording the earlier report and suppression of the same cannot be ruled out. It is also pertinent to note that the present report does not contain the signature of P.W.2 and further, P.W.2 is an injured witness and he went to the Police Station and only thereafter, he has been sent to the hospital along with the medical memo. Even the possibility of the report given by P.W.2 also cannot be ruled out. Therefore, we have no hesitation to hold that the report [Ex.P.1] is not a genuine document and it is nothing but a fabricated one.
10. At this juncture, it is relevant to refer a decision of the Hon'ble Apex Court in MARUDHANAL AUGUSTI Vs.STATE OF KERALA reported in AIR 1980 SCC 638 wherein the Hon'ble Apex Court has held as follows:-
".. the entire fabric of the prosecution case would collapse if the First Information Report is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence...."
Therefore, in view of the settled principle of law in the decision cited supra, as already pointed out, even in this case, the earliest report received from P.W.2 in the Police Station was suppressed and there is absolutely no explanation from the prosecution and as such, the prosecution case is liable to be rejected on that sole ground.
11. Even considering the evidence of P.Ws.2 and 3 independently apart from the fact of the suppression of the earlier report and the fabrication of the present document [Ex.P.1], we are of the view that the evidence of P.Ws.2 and 3 are unbelievable and unreliable. P.W.2 is not able to state as to how and with what weapon he has sustained injury at the hands of the accused, as per his categorical statement made in the chief examination itself. P.W.2 has also not whispered a word about the accused stabbing the deceased. It is also relevant to note that though he has stated in the chief examination that the accused has chased the deceased with Suri knife [M.O.1], he has not stated so during the course of the investigation by the police. Apart from the said factors, he has claimed in the cross-examination that he has sustained a bleeding injury and his towel was also stained with blood; but he has not produced the blood stained towel to the police in spite of his appearance before the police after the occurrence.
12. As far as P.W.3 is concerned, it is pertinent to note that he has categorically stated that the police arrived at the scene on information received over the phone and as such, the report could have been prepared only at the scene. It is also relevant to note that P.W.3 has categorically admitted in his cross-examination that he has witnessed the occurrence and after the occurrence, he has simply left to his house and as such, his conduct is unnatural. It is not explained by the prosecution as to how P.W.3 has been traced by the police. The possibility of the examination of P.W.3 long after the occurrence cannot be ruled out. The statement recorded from P.W.3 u/s.161 Cr.P.C., also reached the Magistrate Court only on 16.02.2010. Therefore, we are of the considered view that it is most unsafe and hazardous to place reliance on the evidence of P.Ws.1 to 3, the alleged eyewitnesses in this case.
13. In view of the above said infirmities, inconsistencies and improbabilities, we are constrained to come to the inevitable conclusion that the impugned Judgment of conviction is unsustainable. Accordingly, the criminal appeal is allowed and the conviction and sentence imposed on the appellant for the offence u/s.302 and 324 IPC by the learned Additional District Judge, Fast Track Court, Namakkal in SC.No.90/2010 dated 11.01.2011 are hereby set aside.
14. It is reported that the appellant is in jail. Hence, the appellant/accused is directed to be set at liberty forthwith, if he is not required in connection with any other case. The fine amount, if any paid by the appellant shall be refunded to him.
ap To
1. The Additional District Judge, Fast Track Court, Namakkal.
2. The Inspector of Police Puduchatram Police Station, Namakkal District.
3. The Public Prosecutor High Court, Chennai