BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04/04/2008
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Crl.A.No.343 of 2000
1.Ramar
2.Tamil Selvi .. Accused Nos.1&2/Appellants
Vs.
State rep by
The Inspector of Police,
H-1 Tallakulam Police Station,
Madurai City.
(Crime No.109/1997) .. Complainant / Respondent
PRAYER
This criminal appeal has been preferred under Section 374 Cr.P.C against
the judgment dated 31.03.2000 made in S.C.No.93 of 1998 by the learned Principal
Sessions Judge, Madurai.
!For Appellants ... Mr.T.K.Gopalan
^For Respondent ... Mr.P.N.Pandithurai
Additional Public Prosecutor
:JUDGMENT
S.PALANIVELU, J.
These two appellants, who faced a charge of murder under Sections 302 read
with 34 IPC and also under Section 201 read with 34 IPC before the learned
Principal Sessions Judge in S.C.No.93 of 1998, who found them guilty of the
charges and awarded life imprisonment along with fine and in default to undergo
one month simple imprisonment. Hence, this appeal has been brought forth by the
appellants.
2. Factual scenario as described by the prosecution is essentially as
follows:-
a) Both the accused are spouses. P.W.1 is a mason by profession. He
lodged a complaint with the respondent police station alleging that he was
working under a contractor by name Siddanathan, the deceased, for a long time
and he used to call him as senior paternal uncle. On 08.02.1997, at about 7.30
a.m., he went to the house of one Iyyasamy, Surveyor with regard to construction
of his house and on his return, he proposed to meet Siddanathan who was residing
in Door No.32, 7th Street, Lourdhu Nagar, Pudur. He proceeded to his house,
after purchasing a biscuit pocket in a shop nearby. Siddanathan was residing in
the first floor of the building. P.W.1 climbed the stairs and found the
entrance door of Siddanathan house closed and a light was burning inside the
house. He knocked the door, but there was no response. When he came down, he
saw P.W.2, Gurunathan, P.W.3, Selvi and P.W.4 Chitra, coming there. P.W.1 told
Chitra that the house was kept closed and even after knocking, nobody came out.
All of them trooped to the entrance door and knocked it. P.W.1, Ganesan and
Selvi peeped through the window and found the second accused inside. On seeing
her, they asked her to open the door. She opened the door. P.W.1 asked her
where was Siddanathan and then, he saw the body of Siddanathan hanging by a
plastic rope in the kitchen. His hands were tied on his back by ropes. He was
dead. The first accused came out from the bath room. P.W.1 hauled them up by
quizzing why they have murdered him. However, both the accused left the house
immediately. P.W.1 went to the house of Periyamurugan in Narimedu. On
09.02.1997, at about 5.00 p.m., he went to Tallakulam Police Station and laid a
complaint.
b) On receipt of the complaint, P.W.7, the Sub-inspector of Police lodged
the First Information Report, Ex.P.3 and despatched the same to the Judicial
Magistrate Court and copies to his superior officers. On receipt of FIR,
P.W.11, the Inspector of Police, at about 6.00 a.m. on 09.02.1997, proceeded to
the scene of crime, prepared Ex.P.2, Observation Mahazer and drew Rough Sketch,
Ex.P.6 in the presence of witnesses. He conducted inquest over the dead body of
Siddanathan in the presence of witnesses and prepared Inquest Report, Ex.P.7.
He deputed P.W.6, Grade-I, Police Constable to take the dead body of Siddanathan
for autopsy to the infirmary. P.W.6 produced the corpse along with the
requisition for post-mortem before the Medical Officer, Government Rajaji
Hospital, Madurai. P.W.8, lady doctor attached to the said hospital held post-
mortem over the dead body and issued Ex.P.5, the Post-mortem Certificate
opining that the deceased appeared to have died of cervical spine injury with
post-mortem hanging. She noted the following external injuries on the dead
body.
"Antemortem injuries:
1.Abrasion 1.5 x 1 cm on the right cheek over the maxillary prominence.
2.Abrasion over the chin 2 x 1 cms.
3.Cresenteric abrasion below the chin two in number 1 x .25 cm each.
4.Abrasion over front of right knee 2 x 1 cms, 1 x .5 cm
5.Cresenteric abrasions right elbow 1 x .25 cm each one below the other 1 cm
apart at the back.
6.Cresenteric abrasion 1 x .25 cm back of right elbow.
7.An oblique ligature mark all around the neck 32 x 2 cms. The anatomical
location of the ligature marks is as follws:
- from the chin 8 cms; from the left mastoid 4 cms;
- from the right mastoid 7 cms.
On dissection of neck:
Fracture dislocation of C4 over C5 with bruising of the underlying spinal cord
and pre and para vertebral muscles.
c) After the necropsy, P.W.6 collected M.O.1, Red Colour Nylon Rope and
M.O.2, White Colour Twine and M.Os.3 to 6-clothings from the dead body and
entrusted them with the Investigating Officer. The Investigator examined the
witnesses and recorded their statements. He arrested the second accused near
Seethalakshmi Mill, Thirunagar and sent her for judicial custody. He learnt
that the first accused surrendered before the Judicial Magistrate Court,
Sivakasi and was landed in Sattur Sub-jail. He applied to the Court for taking
him for police custody and got the order as such. He sent the material objects
for chemical analysis through the Judicial Magistrate Court. Ex.P.10 the
Chemical Analyst's Report and Ex.P.11 the Serlogist Report were received. On
completion of the investigation, he laid charge-sheet against the accused on
11.03.1997. The trial Court, on the basis of the materials available on the
prosecution side, framed charges against both the accused under Section 302 IPC
read with 34 and under Section 201 read with 34 IPC as well.
d) In order to substantiate the charges, at the time of trial, the
prosecution examined 11 witnesses and relied on 11 Exhibits and 6 M.Os. On
completion of the evidence on the side of the prosecution, the
accused/appellants were questioned under Section 313 Cr.P.C. as to the
incriminating evidence and circumstances found in the evidence of prosecution
witnesses. They denied complicity in the offence. No defence witness was
examined. On consideration of the evidence on record, the trial Court found both
the accused guilty under Sections under which they were charged as stated above.
Hence the appeal.
e) Pending the hearing of the appeal before this Court, the first accused
died on 22.09.2001. A xerox copy of the Death Certificate issued by the
Corporation of Madurai has been produced by the learned counsel for the
appellants along with a memo. The death of the first accused is recorded and
the appeal is abated as against the first accused.
3.The learned counsel for the appellants Mr.T.K.Gopalan assails the
judgment of the trial Court on two counts. The first one is the delay in
lodging the First Information Report and the other is the material
contradictions and improbabilities found in the oral testimonies of the
prosecution witnesses.
4.The Court heard the learned Additional Public Prosecutor upon the
contentions put forth by the appellants' side.
5.On a careful consideration of the aspect of delay occurred in lodging
the First Information Report, it is crystal clear that remarkable delay has
crept in. The occurrence is alleged to have taken place before 7.30 a.m on
08.02.1997. P.W.1 and other witnesses saw the body of Siddanathan suspended
from the roof in the kitchen. It is the version of P.W.1 that after leaving the
scene of occurrence, he went to the houses of the deceased's relatives and
informed them and that on the next day i.e. 9.2.1997 at about 5.00 a.m. he
lodged the complaint with Tallakulam Police Station. FIR was lodged by P.W.7,
the Sub-inspector of Police, who despatched the same to the Court and other
officials. The First Information Report reached the Judicial Magistrate Court-
II, Madurai, on 09.02.1997 at 12.30 p.m. As is seen from Ex.P3-FIR, the
distance between the scene of crime and the Police Station is only two Kms.
6.P.W.7 in his evidence would state that one can reach the Judicial
Magistrate's residential quarters within 10 minutes, if he goes by walk from the
police station. While the occurrence was found by the prosecution witnesses at
7.30 a.m. on the previous day, only at 12.30 p.m. on the next day, the First
Information Report reached the Court. The prosecution has miserably failed to
explain the delay. In the cross-examination, P.W.1 would state that he remained
in his house during night time afraid of presenting himself in the Police
Station in odd hours. Neither the Sub-inspector of Police nor the Investigating
Officer has adduced any reasons for the delay in lodging and reaching the First
Information Report in the Police Station and the Court respectively. In our
considered view, the unexplained delay is undoubtedly fatal to the prosecution
case. While the Police Station is only 2 Kms from the scene of crime and the
learned Judicial Magistrate residential quarters is also available at a walkable
distance from the Police Station, it is quite unreasonable to entrust the First
Information Report belatedly to the Judicial Magistrate. The delay would throw
a cloud of suspicion in the prosecution case. It also corrodes the genuineness
of the allegations contained in the First Information Report. Every possibility
is there to embellish and embroider the versions as to the occurrence.
7.The learned counsel for the appellants would argue with vehemence,
making a scathing attack on the oral account of P.W.1, by stating that his
evidence is quite unbelievable and a reasonable doubt is surfacing as to whether
he could have been present in the scene of crime after the occurrence, as he
deposed. The conduct of P.W.1 also would lend support to this view, he further
adds. P.W.4 is the cousin sister of P.Ws.2 and 3. P.W.2 to 4 are the close
relatives of the deceased. It is the version of P.W.1 that he had been all
along under the employment of Siddanathan and he came up in his life only with
the help rendered by the deceased; so also both the accused. In fact,
Siddanathan celebrated the marriage of both the accused. He also got an
employment for the first accused. Further, he had bequeathed some of his
properties in favour of both the accused by means of a Will. We find much force
in the contention that these circumstances must have possibly caused hatred in
the minds of P.Ws.1 to 4, towards accused, since he neglected them. As per the
prosecution, P.Ws.1 to 4 saw and found the body suspended in the kitchen roof at
7.30 a.m. It is odd to note that none of the close relatives available in the
scene of crime proceeded to the Police Station and lodged a complaint. Neither
they divulged the occurrence to police immediately nor to anybody else. P.W.1
alone went to the Police Station, that too, after a long delay, and lodged the
complaint. The above said conduct of the witnesses would cast doubt on their
testimonies. No prosecution witnesses present in the scene of crime, attempted
to prevent any of the accused from leaving the house. We find it difficult to
believe the words of P.W.1 that he went to the Police Station only in the
morning fearing to be present during the night hours in the Police Station.
8.Worthwhile, it is to be noted that P.W.3 Selvi and P.W.4 Chitra turned
hostile to the prosecution. They had not stated anything against the accused.
They did not speak about the presence of both the accused in the scene of crime.
9.It is pertinent to state that P.W.2 says about the presence of the
second accused alone in the scene of crime and he has not mentioned about the
name of the first accused. His evidence, if carefully analyzed, totally negates
the prosecution case, but paves way to reach a conclusion that he might not have
been present in the scene of crime. He was aged 19 years at the time of
recording evidence in November,1999. Hence, he was aged about 17 years on the
date of occurrence. His evidence does not inspire the confidence of the Court.
His oral account does not improve the prosecution case in any way. Conversely,
it weakens the prosecution story.
10.Learned counsel for the appellants would garner support from a decision
of Supreme Court reported in 2001 SAR (Criminal) 353, Sohan & Anr Vs State of
Haryana & Anr in which Their Lordships have held that conviction on the basis of
uncorroborated testimony of sole witness is not sustainable. In the present
case also, only the oral evidence of P.W.1 is available to find the accused
guilty which remains uncorroborated from any other circumstance in this case.
The evidence of P.W.2 does not lend any support to the prosecution. P.W.1's
evidence remains with contradictions and his version could not be believed on
the ground that his first information to the police was a miserably belated one.
Scientific evidence also does not constitute valid ground to strengthen the
prosecution. No link is available to connect the accused with the crime.
Nothing transpires to see that they are the actors of crime. No ill-will
between the deceased and the accused could be gauged.
11.Having heard the arguments of the learned counsel for the appellants
and the Additional Public Prosecutor as well and perused the records, we notice
that the prosecution has woefully failed to bring home the guilt of the
appellants beyond all reasonable doubt. Each and every stage of the prosecution
case is shrouded with suspicion. We are of the considered view that the
appellants are entitled to get benefit of doubt which have surfaced in this
case. Therefore, the case under Section 302 IPC read with 34 and 201 read with
34 IPC comes to a naught.
12. The second appellant is entitled to get acquittal and the appeal
deserves to be allowed and it is accordingly allowed. The fine amount, if any,
paid by the second appellant shall be refunded to the second appellant.
In respect of first appellant the appeal is abated as per Section 394 (2)
Cr.P.C.
ssm
To
1.The Principal Sessions Judge,
Madurai
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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