THE HONOURABLE MR.JUSTICE S.BASKARAN Criminal Appeal No792 of 2011 ---
Kandasamy ... Appellant/Accused vs.
State rep. By The Inspector of Police Mohanur Police Station Namakkal District Crime No.166/2008 ... Respondent Criminal Appeal filed under Section 374 (2) of Cr.P.C., against the judgment passed by the Principal Sessions Judge, Namakkal, dated 18.03.2011 in S.C.No.17 of 2010.
For appellant : Mr.D.Vasudevan For Respondent : Mr.E.Raja, Additional Public Prosecutor
JUDGMENT
The appellant herein was found guilty under Section 304 IPC and sentenced to undergo imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default to undergo one year imprisonment by Principal Sessions Judge, Namakkal, in S.C.No.17 of 2010, has come forward with this criminal appeal and seeks to set aside the said conclusion contending that he is innocent and has not committed the crime as alleged by the prosecution.
2. The case of the prosecution in brief, is as follows:-
(i) The accused married one Lakhsmi who belonged to a different caste and because of that the accused had developed inferiority complex and felt that the other villagers are talking badly about him. While so, on 22.04.2008, at about 2.45 p.m., when the deceased Marudhayee was talking with some other women near the tamarind tree, adjacent to a petti shop, owned by one Karpagam, the accused came there, abused the deceased and assaulted her with M.O.1-Wooden log (Vadanarayanan kattai) on her head, causing grievous injury , which resulted in the death of the deceased.
2.2 The son of the deceased who deposed as P.W.1 stated that while he was at the petti shop owned by Karpagam, he saw his mother/deceased/Marudhayee and other ladies talking among themselves sitting near the tamarind tree, next to the petti shop and at that time, the accused whose house was nearby came in a bicycle and seeing the ladies talking among themselves, abused them by stating as follows:-
“ mg;nghJ fe;jrhkp vd;gth; Kd;lr;rpfs; nrh;e;J bfhz;L ahh; Foia bfLf;f ngrpf;bfhz;L ,Uf;fp';f vd;W brhy;ypf; bfhz;L irf;fpspdpy; mth; tPl;ow;F brd;Wtpl;lhh;/”
According to P.W.1, the accused went to the house nearby and after some time, returned by foot and took out a wooden log-M.O.1, lying near the petti shop, assaulted the deceased on her head causing injury. It is further stated by P.W.1 that the accused threatened another lady Ramayee who was present, stating that, he will kill her also and when P.W.1 and another Velusamy tried to get hold of the accused, he escaped and ran away with M.O.1 wooden log. According to P.W.1, her mother was alive for another 15 minutes and thereafter, she passed away. P.W.1 further stated that, at that time, one Kandasamy (P.W.3) who was working as Clerk in Panchayat, came there and he asked him to write down the complaint in which he signed and lodged the complaint at Mohanur Police Station. The said complaint is produced as Ex.P.1. Thereafter, the same day, the accused was identified by P.W.1 at about 11 pm, at Mohanur Bus stop and he was secured by the Police. P.W.1 stated that the accused attacked his mother and she died on the spot and complaint was lodged by him in the Mohanur Police on the same day.
2.3 The Sub Inspector of Police, who deposed as P.W.12 stated that on 22.04.2008 while he was on duty at Mohanur Police Station, one Thangavel of Poondipalayam Village came to the station and lodged the complaint stating her mother Marudhayee was assaulted by Kandasamy on her head which resulted in death and he registered a case in Crime No.166/08 under Sections 302 and 506(ii) IPC and produced the said FIR as Ex.P.9.
2.4 The Inspector of Police, who deposed as P.W.13, stated that while he was functioning as Inspector in-charge of Mohanur Police Station, he took up for investigation, the case registered in Mohanur Police Station Crime No.166/08, visited the occurrence spot at 16.30 hours and prepared Ex.P.10- Rough Sketch and conducted inquest on the body of the deceased at 18.00 hours. The Inquest report is produced as Ex.P.11. Further the Investigating Officer of the case P.W.13 stated that at about 20.30 hours, he secured one wooden cot/M.O.2 under mahazar. Thereafter, on the same day, at 23.00 hours, he secured the accused and recorded the confession statement given by him. The admitted portion of the statement is marked as Ex.P.5. Accordingly, he secured M.O.1/Wooden Log as identified by the accused at about 1 a.m., on 23.04.2008 in the presence of witnesses by preparing seizure mahazar-Ex.P.6. P.W.13 examined witnesses and recorded their statements and also secured some material objects under the seizure memo and forwarded the same to the court as Ex.P.12-Form 95.
2.5. P.W.7, the VAO stated that on 22.04.2008, he was informed by Mohanur Police over phone around 4 p.m., about occurrence and he went to the occurrence spot, wherein Police and public were present. He further stated that the police prepared Ex.P.3-Observation Mahazar, wherein, himself and another witness present, put their signature. The police recovered cot (M.O.2) under Ex.P.4-Seizure Mahazar. Further on the same day, around 10 p.m., he was summoned by the Inspector of Police and accordingly, he went to the Mohanur Police Station and from there he accompanied the Police Officials to a spot nearby Kanthamalai Murugan Temple, where the accused was arrested by the Police. Thereafter, the confession statement of the accused wherein part of admissible portion is marked as Ex.P.5. Subsequently, wooden log (M.O.1) was seized from the bush near Kanthamalai Murugan Temple identified by the accused. Thus the prosecution contends that the accused assaulted by using M.O.1-Wooden Log causing injuries on the head of the deceased, which resulted in the death.
2.6. The Prosecution examined Head Constable-P.W.10 who stated that on 22.04.2008, around 16.00 hours, as directed by the Inspector of Police, he went to the occurrence spot in Poondipalayam Village in Mohanur Police Station Crime No.166/08 and after the inquest on the body of the deceased was completed, took the body and handed over to Namakkal Government Hospital at 00.20 hours for post mortem and on the next day, by 10.30 a.m., post mortem was completed and handed over the body to the relatives of the deceased. He produced the dress materials of the deceased as M.Os.3 and 4.
2.7. The doctor, who deposed as P.W.11 stated that on 23.04.2008, he conducted the post mortem on the female body aged 65 years in respect of Mohanur Police Station Crime No.166/2008. As per his opinion, the death was caused due to hemorrhage and bleeding caused due to the injury found on the head of the body, about 20 – 24 hours prior to the post mortem. He also opined that the injury found on the deceased could have been caused by using wooden log-M.O.1. The report given by him is Ex.P.8. Thus the prosecution contends that the death of the deceased was caused due to the injury caused on her head by the accused by assaulting with M.O.1-wooden log.
3. On the basis of the oral and documentary evidence produced before the trial court, the accused was found guilty of the offence under Section 304 IPC and was convicted and sentenced to undergo imprisonment and pay a fine amount as stated earlier.
4. Aggrieved over the same, the accused has come forward with this appeal, contending that the conclusion arrived at by the trial court is not sound and correct. According to the learned counsel for the appellant herein, the trial court failed to appreciate the fact that the prosecution case was not supported by PWs. 2 to 8 except P.W.6 who turned hostile. Further, the lodging of Ex.P.1-complaint itself is doubtful. Further the occurrence spot is not established beyond doubt. It is also pointed out that the arrest of the accused and recovery of M.O.1 is doubtful and the same is not established. In the absence of any acceptable evidence and the failure to establish the motive factor by the prosecution, the conclusion arrived at by the trial court relying solely on the evidence of the complainant, who lodged Ex.P.1– complaint, viz., the son of the deceased, is untenable and sought to allow the criminal appeal.
5. While looking into the evidence on the side of prosecution, it is seen that the prosecution witness P.Ws.2 to 7 and 8 turned hostile and gave contradictory evidence. The only other witnesses who stood by the prosecution is P.W.1 and he is the son of the deceased. According to P.W.1, the occurrence took place at 2.45 p.m., and his mother died at the spot within 15 minutes. He further stated that Ex.P.1-complaint was lodged by him and the contents was written by Kandasamy, who deposed as P.W.3. Further P.W.1 stated that while he was on the way to lodge the complaint, police came to the spot and on his request, the complaint was written by P.W.3/Kandasamy, wherein he signed. Similarly P.W.3 also stated that on 22.04.2008, at about 2.45 p.m., when he was on his way to Mohanur, he saw a crowd standing near the petti shop owned by Karpagam, and on enquiry, he came to know about the occurrence and at request by P.W1/Thangavel, son of the deceased Maruthayee, he wrote down the complaint. According to him, P.W.1-Thangavel and himself went to the Police Station and lodged the complaint at about 5.30 p.m. Both P.W.1 and P.W.3 have not stated as to where the complaint was written. According to P.W.13-Inspector of Police, he came to the spot and inspected at 16.30 hours. Likewise P.W.10 , the Head Constable of Police also stated that at around 16.30 hours he was asked to proceed to Poondipalayam Village in respect of Mohanur Police Station Crime No.166/2008. While so, the complainant/P.W.1 has stated in his cross examination as follows:-
“ehd; rk;gtk; ele;j md;W nghyP!; !;nlrDf;F khiy 5 kzpf;F nghndd;/ ehd; 5 kzpf;F nghyP!; !;nlrd; nghFk; nghJ ,d;!;bgf;lh; m';F ,y;iy/ nkhfDhh; nghyP!;
;!;;nlrDf;F ,d;!;bgf;lh; ,ut[ 8 kzpf;F te;jhh;/ /////// ///////md;W !;nlrdpy; ,ut[ 1 kzp tiu nghyP!; epiyaj;jpy; ,Ue;njd;/ mjdhy; khiy 5 kzpf;F nghyP!;
!;nlrd; ngha; ,ut[ 1 kzp tiu nghyP!; !;nlrdpy;
,Ue;jjhy; rk;gt ,lj;jpy; vd;d ele;jJ vd;W vdf;F bjhpahJ/ /// g[fhh; kDtpy; ifbaGj;J nghLk;nghJ ,ut[ 11 kzp ,Uf;Fk;/ ,d;!;bgf;lh; Kd;ghf ifbaGj;J nghl;nld;/ ehd; mLj;j ehs; nghyP!; !;nlrDf;F nghftpy;iy/ /////// Likewise the person who is stated to have written the complaint/Ex.P.1 viz., one Kandasamy while deposing as P.W.3 stated in his cross examination that himself and P.W.1 Thangavel lodged the complaint at about 5.30 pm. Thus admittedly, the complaint was lodged by P.W.1 only after 5 p.m. He has further stated that he signed in the complaint petition on that date at 11 p.m. In such circumstances, it is contended that there is no possibility to register the case before 4 p.m., and how P.W.13-Investigating Officer reached the spot by 4.30 pm., is not explained by the prosecution properly.
6. As stated above, the only witness supporting the case of the prosecution is P.W.1. According to him, the deceased was assaulted by the accused with M.O.1 Wooden log (Vadanarayana kattai). The Investigating Officer of the case who deposed as P.W.13 stated that on 22.04.2008, at about 23 hours, he arrested the accused at Kanthamalai Murugan Temple bus stop after the witness identified him and he recorded the confession statement given by the accused. Following it up, on 23.04.2008, early morning 1 a.m., he recovered M.O.1 wooden log from the thorny bush close to the said temple in the Mahazar. Thus according to the prosecution, the accused was identified and secured by the police around 23 hours and M.O.1 was thereafter recovered, by 1 a.m., the next day. However, P.W.1 in his cross examination, stated as follows:-
“ vjphpia rk;gtj;jd;W ,ut[ fhty; epiyaj;jpy ghh;j;njd;/ mg;go ghh;f;Fk; nghJ ,ut[ kzp 11 ,Uf;Fk;/ mg;nghJ thjehuhazd; fl;ilia ehd; ghh;j;njd;/ md;W ,ut[ tpVX kw;Wk; mtUila mrp!;blz;l; Mfpnahh;fs ,Ue;jhh;fs;/ “ Thus the evidence of P.W.13-Investigating Officer of the case and the evidence of P.W.1/complainant herein are totally contradictory and creates doubt as to whether really the accused was arrested and M.O.1 was secured as claimed by the prosecution. Further the VAO who is the witness to the recording of the confession by the accused and recovery of M.O.1 while deposing as P.W.7 stated that he was summoned by the police at about 10 pm, and went to the Mohanur Police Station along with his assistants;
thereafter, he accompanied the police to the spot near Murugan Temple at Kanthamalai, there, the accused was arrested and his confession was recorded and M.O.1 recovered. He further stated in his cross examination that he did not say anything about where he was from 6 pm., to 10 pm., on that date, during the police enquiry. P.W.7 further stated that he was in the police station from 10 pm., to 1.30 pm., and signed twice in the already written papers on that date. P.W.7-VAO also stated that he signed once at 11 pm., and another signature was put by him at about 1 a.m. He further stated that he signed in the confession statement at about 11 pm., and around 1.30 a.m., in respect of recovery of the M.Os. Thus, when the witness P.W.7 states that he was there in the police station upto 1.30 a.m. and he has signed in the police station, creates doubt on the veracity of arrest of the accused and recovery of M.O.1 as claimed by the prosecution. Even though it was stated that the wooden log was blood tainted, no serology report was available about the blood found in M.O.1 but the doctor who deposed as P.W.11 stated that the injury could have been caused by M.O.1 Wooden Log or by steel rod also. It is admitted by P.W.7 that he was not shown M.O.1 wooden log during enquiry. Thus doubt arises as to whether the accused really gave confession statement and on that basis M.O.1 was recovered as claimed by the prosecution. In view of the evidence of P.W.11-doctor and the fact that the blood stained M.O.1 has not been sent for chemical analysis and no report obtained by the prosecution, it will not be safe to accept the claim of the prosecution that the victim was assaulted by M.O.1- Wooden log, causing injuries, resulting in death of the victim.
7. As stated earlier, the prosecution relied upon the evidence of P.W.1 alone to prove the fact that the victim being assaulted by the accused herein by M.O.1. According to P.W.1, while the deceased was talking with other ladies near the petty shop owned by one Karpagam, the accused came there in bicycle and scolded the ladies in filthy language and proceeded to his house nearby. After some time, it is stated by P.W.1 that the accused returned by foot, took out M.O.1 Vadanarayanan kattai lying adjacent to the petti shop and assaulted the victim. It is admitted by P.W.1 that he was about 15 feet away from the place where the accused took M.O.1 wooden log and the place where his mother was sitting. P.W.1 admitted that when the accused returned, he did not speak to his mother and did not bring any weapon from his home. P.W.1 further admitted it is not possible to hold M.O.1 with one hand and he has not informed the police nor mentioned in his complaint as to whether the accused assaulted the deceased by holding M.O.1 with both hands or either one of his hands. He further admitted as follows:-
“ mg;nghJ ehd; vjphp fe;jrhkpaplk; vJt[k; ngrtpy;iy/ rk;gtj;jpw;F gpd; ehd; vjphpaplk; vJt[k; ngrtpy;iy/ ///// “ “........irf;fpypy; ngha;bfhz;nl vd; mk;khit ghh;j;J ngrpdhh;/ ehd; me;j rkak; vd; jhahiu jpl;lhky; ngrhky;
nghlh vd;W ehd; brhy;ytpy;iy/ md;iwa jpdk; vjphp mtUila tPl;ow;F nghdhuh ,y;iyah vd;W bjhpatpy;iy ehd; ghh;f;ftpy;iy/ kWgoa[k; mth; irf;fpspy; jpUk;gtutpy;iy/ ///// “ Thus it is surprising that P.W.1 who is the son of the deceased never tried to interfere the accused or to pacify him before the alleged occurrence. Further P.W.1 stated that he was present near the petti shop where the alleged occurrence took place. However, P.W.2 stated that he knew the accused as well as the deceased and he reached the occurrence spot around 4.45 pm., to 5 pm., and witnesses P.W.3-Kandasamy and P.W.1- Thangavel reached the occurrence spot only later. Thus in the light of P.W.2 statement and other reasons stated earlier, doubt arise as to whether P.W.1 was actually present at the occurrence spot as claimed by him.
8. Thus in the light of the above said discussion, doubt arise as to when actually the complaint was lodged, when the accused was secured and whether M.O.1 was recovered on the basis of the alleged confession statement of the accused as claimed by the prosecution. In the absence of any other independent evidence and in view of the contradictions in the evidence of P.W.1-son of the deceased, doubt arise as to whether really the deceased was assaulted by the accused as claimed by the prosecution. The finding of the trial court that the case of the prosecution is established beyond doubt and the accused is guilty of the alleged offences is not sustainable for the above said reasons and hence, the judgment of the trial court is liable to be set aside for the aforesaid reasons. The point is answered accordingly.
9. In the result, this Criminal Appeal is allowed. The conviction and sentence passed in Sessions Case No.17 of 2010 passed by Principal Sessions Judge, Namakkal, is set aside. The appellant/accused is acquitted. Bail bond, if any executed by him shall stand cancelled. Fine amount, if any paid by him is ordered to be refunded forthwith.
Index:Yes/No 11.01.2017 nvsri To
1. The Inspector of Police, Mohanur Police Station, Namakkal (Cr.No.166/2008)
2. The Principal Sessions Judge, Namakkal.
3. The Public Prosecutor Office, High Court, Madras.
4. The Section Officer, Vernacular Record Section, High Court, Madras.
S.BASKARAN, J.
nvsri Judgment in Crl.A.No.792 of 2011 11.01.2017 http://www.judis.nic.in