This appeal is preferred by the third accused in S.C.No.43 of 1996, on the file of the Additional Sessions Judge and Chief Judicial Magistrate, Tuticorin. In such case, three accused stood tried. A2 and A3 were charged under Section 302 I.P.C., while A1 was charged with Section 302 r/w.109 I.P.C.
2. A1 was acquitted and A2 and A3 were convicted under
Section 304(2) I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo three months simple imprisonment. The first appellant/A2 died during the pendency of this Criminal Appeal.
3. The prosecution case is as follows:
At about 8.00 A.M. on 06.05.1993, near the public tap in Manapadu Village, there was a dispute between the mother of the third accused and P.W.4, the sister of the deceased. The deceased has supported P.W.4 and used filthy language against the mother of A3. Owing to this, at about 02.00 p.m. the first accused instigated and the second accused attacked the deceased with Aruval causing injury to his right elbow and left thigh, while the third accused assaulted the deceased with iron rod on his head and left shoulder. The deceased died on the way to hospital.
4. P.W.1 is the wife of the deceased. P.Ws.2 and 4 are the sisters of the deceased. P.W.3 is the post-mortem doctor.
5. P.W.5 is the witness to the observation mahazar and the arrest of A2, his confessional statement and the recovery of M.O.1 Aruval, pursuant thereto, to in the presence of the V.A.O.
6. P.W.6 is the police constable, who took the body of the deceased for post-mortem and recovered the M.Os.7 (under wear) and 8 (waist thread) worn by the deceased.
7. P.W.7 is the police constable, who delivered the express F.I.R. to the Judicial Magistrate's Court, Tiruchendur. P.Ws.8 and 9 are the investigating officers.
8. The accused and the deceased Ravindran belonged to Manapadu Village. P.W.1 and the deceased were married in the year 1981 and they had three children.
9. The deceased was a fisherman. 1 3/4 months before the fateful day, there was an occurrence, in which some persons belonging to the prosecution party suffered cut injuries at the hands of the accused party. A case in this regard was pending before the Tiruchendur Court. Thereafter, one day when P.W.4 went to take water from a well, Antonyammal, Helen, Vennila W/o.A2, Navamani, Sister of Siluvaipitchai entered into an argument with P.W.4. P.W.4 was scolded by the deceased and taken away. Thereafter, the occurrence is said to have taken place at about 02.00 p.m. on 06.05.1993. A2 cut the deceased on the right knee and left thigh and the back portion of the left thigh with an aruval. The first accused instigated and the third accused beat the deceased with an iron rod on the right side of the head and the left shoulder. The accused ran away from the scene of occurrence, carrying their weapons with them. P.Ws.1,2 and 4 and another took the deceased, who had fallen down on a coir cot to the hospital. The deceased died near Kulasekarapattinam Pallivasal. P.Ws.1 and 2 went to Kulasekarapattinam Police Station and preferred a complaint with the Sub Inspector of Police. The complaint is Ex.P1. P.Ws.1 and 2 signed the complaint.
10. The Sub Inspector of Police, Kulasekarapattinam Police Station received the complaint and registered a case in Crime No.116 of 1993 under
Sections 109,324 and
302 I.P.C. The First Information Report is Ex.P11. The Express F.I.R. was received by P.W.7 at 05.15 p.m. on 06.05.1993 and handed over to the learned Judicial Magistrate, Tiruchendur at 06.00 p.m. The passport is Ex.P10.
11. P.W.8, the Inspector of Police received the copy of the First Information Report at 05.30 p.m., took up investigation, conducted inquest in the presence of P.Ws.1 and 2 and others and prepared Inquest Report, Ex.P12. He also examined the witnesses. He handed over the body of the deceased to P.W.6, Police Constable towards conduct of Post Mortem. P.W.3 Doctor, received the requisition for post mortem, Ex.P2 and conducted Post Mortem over the body of the deceased on 07.05.1993 at about 10.00 a.m. The Post Mortem report reads as follows:
"Identification and caste marks:
1.ABM over right side of the chest.
2.ABM over laternal wall of L1-axilla
3.ABM over left cheek.
The body was first seen by the undersigned at 10.30 A.M. on 07.05.1993. Its condition thenw as Cold, Rm present in neck, arms and legs. Post Mortem commenced at 10.30 A.M. on 07.05.1993. Appearances found at the Post Mortem of a moderately nourished male likes on its back Arms by the side of the body. Eye lids closed Pupils dilated mouth opened. Tongue inside the mouth. Teeth 8 8 Hyoid intact.
Injury external:
A deeply incised wound over back of left thigh about 16cmx4cmx6cm size.
2. A deeply lacerated wound over front of right elbow 10cmx7cmx3cm size.
3. An abrasion over right frontal cresion 3cmx2cm skin deep.
4. An abrasion over back of left shoulder 7cmx1cmxskin deep. Internal:
1. On exploration muscles, vessels and nerves exposed no bony lesion.
2. Muscles, Vessels, nerves exposed no bony lesion.
3. No bony lesion.
4. No bony lesion.
Heart:
210 gm Chambers contain 30 ml of blood lungs right 500 gms left 490 gms. Pale stomach contains about 30 ml of fowl smelling fluid, Pale. Liver 1500 gms Pale, Spleen 150 gms Kidney 150 gms Pale, Intestine pale, Bladder empty. Brain 1350 gm. Pale, death would appear to have occurred about 14-18 hours prior to post mortem examination. The deceased would appear to have died of heamorrhage and shock due to multiple injuries".
12. P.W.3 opined that the deceased would have died of bleeding and shock, 14 to 18 hours before the post mortem. Ex.P3 is the Post Mortem Report. He also opined that injuries 1 and 2 could have been caused by aruval, whereas injuries 3 and 4 could have been caused by iron rod. After post mortem, P.W.6 received the body, recovered M.O.7, underwear and M.O.8, waist cord and handed over the body to the relatives of the deceased. His passport is Ex.P9.
13. P.W.8, Inspector of Police, recovered blood stained coir portion of the cot and blood stained lungi (saram) in the presence of P.W.5, Village Administrative Officer and his assistant at 09.00 p.m. on 06.05.1993 under Ex.P4, Attakshi. The blood stained coir portion is M.O.3. The blood stained lungi (saram) is M.O.4. The Inspector of Police inspected the scene of occurrence in the presence of P.W.5 and his assistant and prepared observation mahazar, Ex.P5 and Rough Sketch, Ex.P13. Then he recovered blood stained earth, M.O.5 and sample earth, M.O.6 under Attakshi Ex.P6. He arrested the second accused at 04.15 p.m. on 08.05.1993, who gave a voluntary confession statement , which was recorded in the presence of witnesses. The admitted portion thereof is Ex.P7. The same led to the recovery of an aruval at about 05.45 P.M. hidden in the sand under Ex.P8. P.W.9 continued the investigation, which was originally conducted by P.W.8, examined the post mortem doctor, received the Post Mortem Report, completed the investigation and filed the charge sheet on 20.12.1993.
14. When the accused were questioned, they denied the charges. The prosecution examined P.Ws.1 to 9, marked Exs.P1 to 13 and M.Os.1 to 8.
15. The learned counsel for the appellants primarily submits that the act attributed the appellant/A3 is of causing injury to the head of the deceased with an iron rod. The Doctor's evidence and the post mortem report would show that the head such injury was a mere abrasion. The prosecution case suffered from several infirmities and no independent witnesses had been examined. The occurrence is said to have taken place at the seashore. The Investigating Officer admitted that for two furlongs from the scene of occurrence, there absolutely were no house. Considering that to the east of the alleged scene of occurrence, there was only the sea, then, if for two furlongs, there were no houses, then many persons would have witnessed the occurrence, if the occurrence had actually taken place at 02.00 p.m. as alleged. Further, the prosecution witnesses are all related to the deceased. The likelihood of their presence at the scene at the time of occurrence is highly doubtful. If indeed they were present then, even from a distance, they could have seen the accused and in such circumstance, it is natural to expect them to raise a hue and cry, which according to the prosecution, is not the case. P.W.1 in her cross examination has admitted that it is on the basis of suspicion that Ex.P1, complaint was given. P.W.2 seeks to improve the prosecution case falsely alleging that they first went to the local hospital and since treatment was refused, they proceeded towards Kulasekarapattinam. From the fact that no blood stained clothes were recovered either from P.Ws.1 and 2 or from other witnesses, a doubt arises as to whether they witnessed the occurrence or carried the deceased in the manner stated by them. Admittedly, the iron rod allegedly used by the third accused had not been recovered. The learned counsel also submits that the fact that the First Information Report had been registered at a time close to the occurrence and that the same reached the Court without any delay would not carry forward the prosecution case, for that is how things would be made to appear, when the First Information Report is the product of deliberation. If the case had been put up together after the body had been found naturally, the time of occurrence would have been stated to suit the time of filing the First Information Report.
16. I have heard the learned Government Advocate on the submissions of the learned counsel for the appellant. The learned Government Advocate lays heavy emphasis and draws support from the Judgment of the lower Court and states that there is no reason for interference by this Court in this case. Eye witnesses to the occurrence had clearly deposed to the occurrence and merely because there were some minor contradictions in the deposition of witnesses, the prosecution case cannot be rejected in toto. He further submits that eye witnesses should not be disbelieved simply because they happen to be the relatives of the deceased.
17. I have considered the rival submissions.
18. I find reason to believe that the prosecution version of the case is not true. Firstly P.Ws.1,2 and 4, who are the alleged eye witnesses, are the wife and sisters of the deceased. This alone, as rightly submitted by the learned Government Advocate, would not be the reason enough to disbelieve them. However, they have admitted to the presence of independent witnesses. While so, there is no explanation, why such persons have not been examined. The occurrence place is said to be the seashore and at 02.00 p.m. As rightly contended by the learned counsel for the appellants when there is nothing to impede the view for a distance of two furlongs from the scene of occurrence, then the accused could not have moved in stealth and suddenly come upon the scene of occurrence. If so, it stands to reason that had P.Ws.1 and 2 seen them moving towards the deceased, they would have raised a hue and cry. The recovery of blood stained earth and sample earth at the scene of occurrence i.e., the seashore at about 09.00 p.m. on the night of the occurrence seems farfetched. The absence of recovery of blood stained clothes from persons, who allegedly had carried the deceased immediately after the occurrence is telling. When P.W.1 has admitted to having preferred the complaint on the basis of suspicion, then it becomes clear that it is unlikely that anyone had witnessed the occurrence. In these circumstances, this Court is inclined to allow the appeal and set aside the Judgment of the lower Court.
19. In the result, this Criminal Appeal is allowed by setting aside the Judgment of the trial Court. The second appellant/A3 is acquitted of the offence charged against them. Since it is reported that the first appellant/A2 is dead, the appeal in respect of him abates. The bail bonds, if any, executed by second appellant/A3, shall stand cancelled and the fine amount, if any, paid by him, is ordered to be refunded forthwith.
smn To
1.The Additional Sessions Judge and Chief Judicial Magistrate, Tuticorin.
2.The Inspector of Police, Kulasekaranpattinam Police Station, Tuticorin District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.