BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/06/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE SELVI JUSTICE R.MALA
Criminal Appeal (MD) No.152 of 2008
Muthaiah .. Appellant
vs
State rep. by
Dy. Superintendent of Police,
Krishnankovil Police Station,
[Cr.No.254/2006] .. Respondent
Appeal under Section 374 (2) of the Code of Criminal Procedure against the
Judgment dated 30.10.2007 in S.C.No.34/2007 on the file of Principal District
Court, Virudhunagar District at Srivilliputhur.
!For appellant ... Mr.G.Anbu Saravanan
^For Respondent ... M/s.Issac Manuel, A.P.P.
:JUDGMENT
Judgment of the Court was delivered by R.MALA,J
This appeal arises out of the Judgment in S.C. No.34/2007 dated
30.10.2007 convicting the appellant/accused U/s.302 and 201 IPC and sentencing
him to undergo life imprisonment and RI for 3 years and also imposing fine.
2. Briefly stated case of prosecution is as follows:-
Both deceased Vellaisamy and accused Muthaiah are brothers. PW3- is the
wife of deceased. PW1- is their son. Deceased Vellaisamy and accused owned 2 .
acres of land along with pump set on the eastern side of Krishnankovil-Madurai
main road. Accused allegedly having grudge that a larger extent was allotted to
Vellaisamy in the partition.
3. Deceased has harvested onion in his field and the harvested onion was
kept in the field. On the night of 26.8.2006 - 9.00 P.M., deceased Vellaisamy
went to the field for watching over the harvested onion kept in the field. On
27.8.2006, Vijayalakshmi, daughter of accused had fixed date to go to new house
[ghy; fha;r;Rk; tpB&&k;] for which Vijayalakshmi had arranged for light and mike
set.
4. On the night of 26.08.2006, because of light, PW1 could not sleep well.
On the wee hours of 27.8.2006 - 2.00 A.M., PW1 woke up and saw his junior
paternal uncle (accused) taking drinks. PW1 saw the accused proceeding towards
the field. Suspecting that accused might steal the harvested onion, PW1
followed him and went to the fields. Accused beat Vellaisamy who was lying in
the field. PW1 hit himself behind a plant and saw accused attacking his father
with MO1-stick. Without making noise, PW1 went away from the place and when he
again went to the place of occurrence, both accused and deceased Vellaisamy were
found missing.
5. PW1 immediately went to the village and informed to PW2-Paulpandi about
the occurrence. PWs.1 and 2 went and saw Vellaisamy dead with bleeding injuries
on the eastern side of Krishnankovil-Madurai main road-on the diversion road,
where culvert work was being undertaken.
6. After informing PW3-Pappa, wife of the deceased Vellaisamy, at 6.00
A.M. PW1 went to Krishnankovil Police Station and lodged Ex.P1-Complaint. In
Ex.P1-Complaint, PW2 had also signed as witness. On the basis of Ex.P1, a case
in Cr.No.254/2006 was registered U/s.302 IPC [Ex.P16].
7. Ex.P16-FIR was received in Magistrate Court at 1.25 P.M. on 27.8.2006.
On receipt of FIR [Ex.P16], PW14-Inspector of Police had taken up investigation.
On the morning of 27.8.2006 - 8.00-9.00 A.M., PW14 inspected the scene of
occurrence and prepared Ex.P4-Observation Mahazar and Ex.P17-Rough plan.
Witnesses were examined and inquest was held on the body of deceased Vellaisamy.
Ex.P18 is the Inquest Report. After inquest, body was sent to Government
Hospital, Srivilliputhur for autopsy. From the place where body was lying, PW14
recovered casurina stick[MO2]; bloodstained lungi[MO3]; bloodstained mud[MO7]
and sample mud[MO8] under Ex.P9-Mahazar. From the field of Pandian which is
about 75 feet away from the land, MO11-bloodstain was recovered under Ex.P7-
Mahazar. From the place of occurrence, PW14 had also seized MO10(series)-
bloodstained Thennanthattai piece under Ex.P8-Mahazar.
8. Based on the requisition from the Inspector of Police, PW7-
Dr.Pushpalatha conducted autopsy on the body of deceased Vellaisamy and noted
the following injuries:-
A lacerated wound 2 x 1cm bone depth above the left ankle.
A lacerated wound 2 x 2cm bone depth on the left thigh.
Deformity left knee.
A lacerated wound 1 x 1cm bone depth on the left upper arm.
Deformity left elbow.
A lacerated wound 2 x . x . cm on the left cheek.
A lacerated wound 2 x . x . cm on the left eyebrow.
Deformity Right forearm
Abrasion 10 x 10cm on the neck over both scapular region.
PW7 Dr.Pushpalatha had also noticed the following fractures:-
fracture of both bones left leg;
fracture of left forearm;
fracture of dislocation left knee;
fracture of left humerus;
fracture of dislocation left elbow;
fracture of both bone right forearm.
PW7 opined that deceased died of shock and haemorrhage due to multiple injuries
and issued Ex.P3 post-mortem certificate. Ex.P.3 is the post-mortem
certificate. After postmortem, MOs.4 to 5 apparels were seized from the body.
9. PW14-Inspector of Police arrested the accused on 27.8.2006 at 6.00 P.M.
in the presence of PW8- and Village Assistant Subramanian. On being
interrogated, accused had voluntarily given confession statement which led to
recovery of MO1-Stick and MO6-Lungi. Based upon the requisition from PW14,
seized materials were sent for chemical analysis. PW15 took up further
investigation. On receipt of chemical analysis report and after completion of
due investigation, PW15 filed final report on 08.11.2006 against the accused
U/s.302 and 201 IPC.
10. To substantiate the Charges against the accused in the trial court,
prosecution examined PWs.1 to 15 to and Exs.P1 to 18 and MOs.1 to 13 were
marked. Accused was questioned U/s.313 Cr.P.C. about the incriminating evidence
and circumstance. Accused denied all of them and stated that a false case is
foisted against him.
11. Upon analysis of evidence, learned Sessions Judge held that evidence
of PW1 is credit worthy and acceptable. Referring to 2007 (1) MLJ (Crl) 190
[Gaja Hussain v. Inspector of Police, Coimbatore] learned Sessions Judge held
that merely because PW1 had not gone to rescue of his father, his evidence
cannot be disbelieved. In so far as delay, the learned Sessions Judge held that
PWs.1 and 2 might have searched for the body in the night and after finding the
body near the diversion road, they have gone to the Police Station at 6.00 A.M.
to lodge a complaint and delay has been satisfactorily explained and on those
findings, learned Sessions Judge held that prosecution has proved the guilt of
the accused beyond reasonable doubt and convicted the appellant U/s.302 and 201
IPC.
12. The learned appellant counsel would contend that P.W.1 is none other
than the son of the deceased Vellaichamy; there is a longstanding enmity between
the deceased family and the accused; due to the enmity only, P.W.1 has given
complaint. He further contended that prosecution case is only based on the eye
witness of P.W.1, but, he is not an eye witness; subsequently, he was included
as an eye witness; there is contradiction between ocular and medical evidence
and hence the death of the deceased is only an accidental and not homicidal.
13. He further contended that there is a delay in registering the case and
despatching the same; the distance between the police station and Court is 8
k.m.; but the first information report Ex.P16 reached the Court at 1.25 P.M.
and hence it is clear that Ex.P16 has been created after inquest; P.W.1 has
also admitted that he has suspected one Selvam. In such circumstances, P.W.1
will not be an eye witness; hence, benefits of doubt to be given to the
appellant/accused and he is entitled for acquittal.
14. The learned Public Prosecutor would contend that P.W.1, who is none
other than the son of deceased, is an eye witness; his evidence is cogent and
natural and reliable; the motive for the commission of offence has been proved
by way of examining the witnesses P.Ws.1 to 4; P.W.7 Dr.Pushpalatha has deposed
that the death of the deceased is a homicidal and it is not an accident; in
respect of time, the illiterate persons in a rustic village, they are not having
time sense; so, that to be ignored; since the case is based on direct eye
witness, the trial Court accepted the evidence of P.W.1 and convicted the
appellant under Section 302 I.P.C.; so the trial Court considered all the
aspects in a proper prospective and came to the correct conclusion that there is
no infirmity in the conviction and sentence and warrants no interference.
15. Now, we have to decide whether the trial Court's conclusion that the
death of the deceased is a homicidal is correct?.
16. The learned counsel would mainly contend that the death of the
deceased is not a homicidal and that it is only an accidental. He relied upon
the evidence of P.W.7. While considering the evidence of P.W.7-Dr.Pushpalatha
and Ex.P3, postmortem certificate, the ninth injury is only an abrasion. The
other injuries 1,2,4,6 and 7 are only lacerations. P.W.7 has also noticed the
fracture both bones left leg, fracture left fore arm, fracture dislocation left
knee, fracture left humeur, fracture dislocation left elbow and fracture both
bone right fore arm, P.W.7-Dr.Pushpalatha has stated that there is no head
injury on the body of the deceased. In our considered view there is no merit,
the argument advanced by the learned appellant counsel that the injuries caused
only in accident, since the body has been found near national highway, where the
diversion for construction of bridge, which was mentioned in Ex.P17. If the
vehicle has dashed against the person, he would be thrown out and naturally he
will sustain head injury. P.W.7 Dr.Pushpalatha has given a candid admission
that the deceased had no head injury. When, P.W.7 was in witness box, a
suggestion was posed her that if a vehicle has dashed against the person on the
left hand side such injuries are possible. But, the prosecution has not got any
clarification in respect of her cross examination that if vehicle dashed against
the person and he will be thrown out, certainly that person will get head
injury. The prudent man knows that if any vehicle dashes against a person
naturally, he would be thrown out and certainly he would sustain head injury,
whether it is simple or grievous. But, no clarification has got from P.W.7. If
a person lying in right side, if anybody attacks on his left side body, he will
receive injury only on his left side body. The injuries found mentioned in
Ex.P3 were caused only when the deceased was lying on the cot. here the
occurrence has been taken place at night. So, the contention that death of the
deceased was due to an accident is not an acceptable one. P.W.7-Dr.Puspalatha
has stated that the injuries caused are possible while he was assaulted by big
wooden log. At this juncture, it is prtinent to note the evidence of P.W.1. In
his evidence, he has deposed that his father was assaulted by neem wooden log.
But, M.O.1 is only a tamarind wooden log and the same was not shown to P.W.7.
So, it is clear that the injuries were caused by M.O1 only. In such
circumstances, We are of the considered view that death of the deceased is only
a homicidal one and not due to an accident.
17. Now, we have to consider whether P.W.1's oral evidence, who is the son
of the deceased is reliable. For analysing evidence of P.W.1, we feel it
appropriate to refer to the decision of the Supreme Court reported in AIR 1985
SC 48 (State of Uttar Pradesh Vs. M.K.Anthony). The relevant portion is as
follows:
"While appreciating the evidence of a witness, the approach must be whether the
evidence of the witness read as a whole appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary for the Court to
scrutinize the evidence more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence as whole and evaluate them
to find out whether it is against, the general tenor of the evidence given by
the witness and whether the earlier evaluation of the evidence is shaken as to
render it unworthy of belief.
18. In the light of the above principle, oral evidence of P.W.1 is to be
analysed. Admittedly, there was longstanding enmity between the family of
accused and deceased in sharing the properties. P.W.1 is the sole eye-witness.
When there is enmity and witnesses are closely related to the deceased, their
evidence has to be scrutinised with care and caution. Whenever the Court has to
appreciate the evidence of interested witnesses, Court will have to careful in
weighing such evidence.
19. While evaluating the evidence of P.W.1, he has deposed that the
deceased had gone to his onion filed for watching over the harvested onion; then
at 2.00 P.M., the accused left from the house and told his son-in-law that to go
to his field; P.W.1 further deposed that he was under impression that the
accused might steal the harvested onion, he followed him and witnessed that his
father has been assaulted by the accused. As per version of P.W.1, he kept
quiet and hidden behind the bush. If really any person seen that his father was
assaulted by any one, certainly he would not have remained quite till his father
was attacked by that person and dragged the person from the place of occurrence
to near the bridge, where the body was lying. P.W.1, in his evidence, has
stated that he was hiding behind the kanagambaram flower bush and witnessed the
occurrence in the light shedby tube light, burning nearby. But, in Ex.P17 Rough
Sketch, there is no Kanagambaram flower bush in the scene of occurrence and no
tube light was in the near vicinity of the occurrence.
20. P.W.2, who is none other than the relative of the deceased, has stated
that after the occurrence, he saw P.W.1 and then, they had gone to the place of
occurrence for searching the deceased body and accused and later they saw the
deceased near the bridge.
21. The learned counsel relied upon the decision reported in (2007) 3
Supreme Court Cases (Cri) 159 (Anil Prakash Shukla V. Arvind Shukla) and
contended that P.W.1 was not a natural witness as per his own showing and he had
animosity against the accused and hence his presence at the scene of occurrence
was by a sheer chance.
22. P.W.1, in his evidence, stated that there is a property dispute
between his father and the accused. A panchayat has also been conducted. On
the date of occurrence i.e. on 26.08.2006, at about 9.00 P.M., the deceased gone
to his onion field to keep watch over the harvested onion. On 27.08.2006
morning, there was a house warming ceremony of the daughter of the accused.
Because of the same, there was movement of relatives in that house and so, he
was not able to sleep. When he woke up, he saw the accused, leaving the house
and told his son-in-law that he is going to the field. Hence, P.W.1 suspected
that the accused might steal the harvested onion and he also followed him and
later he witnessed the incident.
23. It is pertinent to note that the deceased aged about 50 years was
lying on the cot and at that time, the accused, about 45 years had assaulted the
deceased and young adult like P.W.1, aged about 20 was a silent spectator is
quite unnatural. Since the victim is his father, on seeing his father attacked,
P.W.1 would have certainly gone to the rescue of his father. It is also
pertinent to note that while he witnessed, the occurrence, he left the place of
occurrence and gone to his village and he saw P.w.2 and then rushed along with
him to the place of occurrence and at that time, the deceased and accused have
disappeared. He stated in his evidence as follows:
"vd; fhl;oy; fhtYf;F gLj;jpUe;j vd; mg;ghit vd; rpj;jg;ghthd M$h;
vjphp bghpa fk;ghy; khwp khwp moj;jhh;. me;j fk;ig milahsk; fhl;odhy; vd;dhy;
brhy;y Koa[k;. ehd; g{ bro kiwtpy; xspe;jpUe;J ghh;j;Bjd;. ehDk; brd;why;
vd;ida[k; moj;J tpLthh; vd;W gae;J bfhz;L kiwe;jpUe;J vd; mg;ghit moj;jij
ghh;j;Bjd;. rpwpJ Beuk; fHpj;J brd;W ghh;j;j BghJ vd; mg;ght[k; me;j nlj;jpy;
ny;iy. vd; rpj;jg;ghthd M$h; vjphpa[k; me;j nlj;jpy; ny;iy. ehd; gjwpg; Bgha;
jpUk;g tPl;ow;F te;Bjd;."
If P.W.1 really witnessed the occurrence, he may very well know that the accused
has dragged the deceased for nearly 150 metres away from the scene of
occurrence. According to the prosecution, P.W.1 was the only eye witness was
available in the scene of occurrence at the time of occurrence. Since he was
afraid that he might be attacked by his junior paternal uncle, he has hidden
behind the flower bush. It is true human behaviour varies from person to
person. Different people behave and react differently in different situations.
Human behaviour depends upon the facts and circumstances of each given case.
How a person would react and behave in a particular situation can never be
predicted. Every person, who witnesses a serious crime, reacts in his own way.
Some are stunned, become speechless and stand rooted to the spot. Some become
hysteric and start wailing. Some start shouting for help. Others run away to
keep themselves as far removed from the sport as possible. Yet others rush to
the rescue of the victim, even going to the counter-attacking the assailants.
Each one reacts in his special way even in similar circumstances. But, here,
P.W.1 is none other than the son of the deceased. He has deposed that being
afraid that the accused might also assault him, he had hidden behind the
Kanagambaram flower bush and witnessed the occurrence. But, after sometime, he
came to know that his father and the accused were disappeared from the scene of
occurrence. So, we are of the considered opinion that the above said story is a
concocted version and the same is an unbelievable one.
24. At this juncture, it is pertinent to note that P.W.1 himself deposed
that he witnessed the incident that the accused has assaulted the deceased and
he left the place; later when he gone that place, his father and the accused
were disappeared. If really he has witnessed the incident as per the version of
the prosecution that the accused had dragged the body of the deceased from the
place of occurrence to the place, where the body has been found. This shows
that the presence of P.W.1 in the place of occurrence, is doubtful. P.W.1, in
his cross examination, fairly conceded as "ehd; rk;gtj;ij ghh;f;ftpy;iy vd;Wk;
vdf;F bry;tj;jpd; kPJ jhd; re;Bjfk; vd;Wk; ehd; g[fhh; bfhLj;J bry;tKk; bfhiy
bra;jhuh vd;gJ gw;wp tprhhpj;jhh;fs; vdr; brhd;dhy; rhpjhd;.". This shows that
if really, he was an eye witness, what prompted him to give a complaint against
one Selvam. Hence, it has clearly proved that P.W.1 was not an eye witness.
25. The following points indicate that P.W.1 could not have been an eye
witness.
i. P.W.1 had suspected one Selvam, who might have committed murder of his
father.
ii. As already discussed, if a prudent man that too a son would not have
hidden behind Kanagambaram flower bush and witnessed the occurrence, when his
father was attacked by the accused.
iii. As per plan-Ex.P17, near to vicinity of the scene of occurrence, no
tube light and no kanagambaram flower bush were there, since the occurrence had
taken place at 2.00 A.M.
iv. It is unbelievable that the occurrence had taken place in the Onion
field, but the body was found near the bridge and how a single person could have
dragged the body from the place of occurrence to nearly 150 metres.
v. Except abrasion on neck over both scapular region, no other abrasions
was found. If a person has been dragged on a person from a place to other
place, certainly there should be more abrasions all over the body. More over,
the shirt of the deceased has been recovered, but the same was not torn. It
contains bloodstain only.
vi. P.W.1 is a village man. He must know the difference between the
tamarind wooden log and neem wooden log. In his evidence, he had stated that
MO1 is a neem stick. But, MO1 is not a neem stick, it is only a tamarind stick.
vii. Blood stained earth has been taken from the place of occurrence and
the land of Pandyan and they were marked as MO7 and 11 respectively and the same
were sent for chemical analysis through the learned Judicial Magistrate and the
same were marked as Items Nos.3 and 4 by the chemical analyst. In the chemical
analysis report, Ex.P13, it was stated that detected blood on each of the above
items 1,2 and 5 to 9 but not on either item 3 or 4.
Considering the above mentioned points, we are of the considered view that the
presence of P.W.1 in the place of occurrence at the time of commission of
offence is highly doubtful.
26. That apart, there is a delay in preferring complaint. In Ex.P1 and as
per the evidence of P.W.1, the incident had taken place at 2.00 A.M. on the wee
hours of 27.08.2006. But, the complaint has been registered at 6.30 A.M. The
case has been registered in crime No. 254 of 2006 under Section 302 I.P.C and
the first information report Ex.P16 was received by the learned Judicial
Magistrate only at 1.25 P.M on 27.08.2006. The distance between the police
station and the Judicial Magistrate Court is only 8 kms. But, inquest has been
conducted at about 09.00 A.M to 11.30 A.M on 27.08.2006, In such circumstances,
Ex.P1 and Ex.P16-F.I.R. and Ex.P18-Inquest report came to light that after
conducting inquest only, Ex.P16 F.I.R has been received by the learned Judicial
Magistrate at 1.25 P.M.. Even though the distance between the police station
and the Court is only 8 k.ms, the delay of 6 hours for reaching the F.I.R. to
Court has not been properly explained by the prosecution.
27. At this juncture, it is pertinent to refer to the arguments of the
learned appellant counsel that only after inquest, F.I.R was prepared and then
only the same reached the Court. There is no explanation on the side of the
prosecution for the inordinate delay of 6 hours, where the distance between the
police station and Court is only 8 kms. Because of the longstanding enmity
between the family of the deceased and accused, Ex.P1 complaint obtained from
P.W.1. So, all these above points cumulatively raise serious doubts about the
version of P.W.1. Serious doubts as to the presence of P.W.1, at the time of
occurrence. We are of considered view that it would be unsafe to rely upon the
evidence of P.W.1 as a sole eye witness and come to the conclusion that the
appellant is guilty under Section 302 I.P.C.
28. The learned appellant counsel would rely upon the decision reported in
(2004(2) T.N.L.R.295(SC) (Harjinder Singh @ Bhola V. State of Punjab) and
contended that P.W.1 is a sheer chance witness, whose evidence should have been
evaluated with great and care caution as per the decision reported in 1997(4)
SCC 192, Satbir V. Surat Singh & another, "a cautious and close scrutiny" of the
evidence of chance witnesses should inform the approach of the Court. He also
relied upon the decision in (2007) 3 Supreme Court Cases (Cri) 159 (Anil Prakash
Shukla V. Arvind Shukla) and contended that as regards the evidence of the sole
eyewitness, P.W.1 was not a natural witnesses as per his own showing and he had
animosity against the accused. His presence at the scene of occurrence was by a
sheer chance. While considering the above citation, we are of the considered
opinion that P.W.1 was not an eye witnesses. He was concocted as a witness for
the purpose of this case since they are having long standing enmity with the
accused.
29. Even though according to the case of prosecution, the death of the
deceased is a homicidal, the same was not proved that the deceased alone caused
such injuries to the deceased and committed the offence. Even though P.W.12
was examined to corroborate P.W.1's witness for searching the body of the
deceased, it is unbelievable one. P.W.3 is the wife of deceased and she was not
an eye witness. P.W.4's evidence is no way helpful to the case of the
prosecution. P.W.5 is the relative of the deceased and his evidence is also not
helpful to the case of prosecution.
30. Upon analysis of the evidence, we find even though the prosecution has
proved that the death of the deceased is a homicidal one since the case is based
only on the sole eyewitness of P.W.1, whose evidence does not inspire our
confidence as trustworthy. Hence, the prosecution has miserably failed to
prove that the appellant/accused is guilty under Section 302 of I.P.C beyond
reasonable doubt and the benefit of doubt has to be given in favour of the
accused/appellant and he is entitled for acquittal. Since the appellant is
acquitted under Section 302 I.P.C, he is also acquitted under Section 201 I.P.C.
31. In the result, the Criminal Appeal is allowed. The conviction and
sentence passed in S.C.No.34 of 2007 by the learned Principal Sessions Judge,
Srivilliputhur is set aside and the appellant/accused is acquitted. The accused
is directed to be released forthwith unless he is required in connection with
any other case. The fine amount, if any, paid by the appellant/accused shall be
refunded.
To
1.The Principal Sessions Judge,
Srivilliputhur,
2.The Judicial Magistrate No.II,
Srivilliputhur,
3.The Inspector of Police,
Krishnankovil Police Station,
Krishnanjkovil.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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