(Judgment of the Court delivered by N.SESHASAYEE, J) 1.The sole accused who was convicted for an offence under Sec.302 IPC and sentenced to life imprisonment and a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for 2 years has come forward with this appeal.
The case of the prosecution in brief are :
2.1. On 20.4.2014 the appellant had invited his victim Palanisamy to a spot near Karpaga Vinayagar temple on the Oothangadu Road and murdered him. Accused first assaulted him with a hammer on the back of his head due to which the latter fell with his face to the ground. Thereafter, A-1 used a stone that was lying there to hit him again on the back of his head.
2.2. The motive attributed to this murder was that about couple of weeks prior to the occurrence, on 05.5.2014 to be precise, Palanisamy had gone and stayed with the accused at his house, during which stay he was alleged to have attempted to misbehave with the wife of the accused and this was reported by her to A-1, and an enraged A1 thought it fit to murder Palanisamy and redeem his wife's honour.
3.1 The occurrence was witnessed by P.W.1, the younger brother of the victim of the crime. He had arranged to shift Palanisamy to the Government Hospital, Erode, where Palanisamy died at 11.40 pm. Thereafter, P.W.1 had gone to the police station to prefer Ext.P-1 complaint based on which Ext.P-16 FIR was registered by P.W.11, a Special Sub Inspector of Police attached to that station. He had organised to forward the FIR to the concerned Magistrate without any loss of time. Thereafter P.W.23, the Investigating Officer (IO, for short) took up the matter for investigation. He went to the scene of occurrence (SOC, for brevity) and prepared Ext.P-13, observation magazar in the presence of P.W.8 Gowri Shankar and one Yuvaraj. He also prepared Ext.P-18 rough sketch of the SOC. Then he seized a blood stained stone (M.O.2), sand with and without blood stain (M.O.11 & M.O.12), under Ext.P.14 seizure magazar. He would then proceed to the mortuary where he conducted an inquest on the body of the deceased and prepared his Ext.P-19 inquest report. Thereafter, he forwarded the body for autopsy and the postmortem was conducted by P.W.5. On the basis of the postmortem conducted by P.W.5 he made available Ext.P-5 postmortem report and Ext.P-6, his final report. After completion of postmortem the constable who was assigned the responsibility of handing over the body for autopsy obtained M.O.7 dhoti, M.O.8 shirt, M.O.9 under-wear etc., that were on the body of the victim and handed them over to P.W.23.
3.2 On the very day at about 1.30 pm. the IO arrested the accused in the presence of P.W.7 and one Balasubramaniam. In the course of interrogation, the accused/appellant tendered an information-statement that led to the recovery of lungi (M.O.3), shirt (M.O.4) and hammer (M.O.1). P.W.23 seized them under Ext.P.12 magazar. It is pertinent to state that M.O.1 hammer, M.O.2 stone, M.O.3 & 4, the dress that the appellant was stated to be wearing and M.O.7 to M.O.9 that were recovered from the body of the dead, contained blood stain. These material objects were sent to forensic science department for biological and serological analysis. After due analysis the reports pertaining to them were received as Ext.P-8 & Ext.P-10. Completing his investigation, the respondent police laid its final report under Sec.302 IPC.
4. The learned I Additional Sessions Judge to whom the case was made over has framed charge against appellant under Sec. 302 IPC. Prosecution has examined as many as fourteen witnesses (P.W.1 to P.W.14), produced Ext.P-1 to Ext.P.22 and M.O.1 to M.O.12. Charges against the appellant was sought to be established by the prosecution on the foundation of P.W.1 and P.W.3 both of who it examined as eye witnesses, of who P.W.3 turned hostile, leaving thus a solitary eye witness in P.W.1. This evidence is then sought to be corroborated by recovery of certain material objects under sec.27 of the Evidence Act, and by Exts.P-8 and P-10, the forensic scientific reports on blood analysis of some of the material objects seized or recovered by the IO in the course of the investigation. When confronted with the evidentiary material weighing against him under Sec.313 Cr.P.C., the appellant promptly denied them. There was no evidence for the defence. The learned Sessions Judge believed the combination of evidence the prosecution presented to hold the appellant guilty of the offence he was charged with.
5.1. P.W.1's evidence opens with an admission that his brother Palanisamy himself was an accused in some murder case and that he was on bail in that case. He also states that Palanisamy was married twice (of who P.W.2 was his second wife).
5.2. P.W.1 discloses that he and Palanisamy were living in two different places, that on 20-04-20014 he went to the place where Palanisamy lived by bus. His trip was intended for receiving some amount that Palanisamy owed him. The time was about 9 p.m. in the night. P.W.1 has deposed that to meet his brother he went to the house of the accused, for according to him both accused and Palanisamy were friends. He found the accused's house locked. Then barely some 150 feet away and near a temple he saw the accused hitting his brother on the back of latter's head with M.O.1 hammer. It appeared Palanisamy fell with his face to the ground. Before P.W.1 could intervene, accused hit with M.O.2 stone lying near by on the back of Palanisamy's head. He then proceeds to state that he informed emergency ambulance service by dialing 108 and took his brother to the Govt. Hospital, Erode. By 12 in the midnight, he came to know of his brother's death. Then he went to the police station with his relatives and preferred a written complaint prepared by a relative of his.
6. The defence chiefly disputes the presence of P.W.1 at the SOC when Palanisamy was murdered and it maintains that P.W.1 has been planted by the investigating agency.
7. Does this theory of the defence has evidentiary support? And, if only there is a strong evidentiary possibility for it, then it breaks the very pivot on which the FIR rests. It hardly requires any reiteration that a shaky and suspect FIR vindicate the cause of the defence more than its intended assistance to the prosecution.
8. First, here is a younger brother who saw his brother brutally attacked leading to the latter suffering bleeding injuries. P.W.14, the IO has indeed collected blood stained earth or soil (M.O.11) from SOC later during the investigation. What did P.W.1 do immediately thereafter? He is silent. The natural course of human conduct as activated by human instinct which a reasonable man of ordinary prudence expects from one under similar circumstances is that the younger brother would rush to his injured elder brother and try to help him physically. If that is so, then his clothes too would have been soiled or smeared with blood stains. P.W.1 has not testified that he hurried to help his brother, which appear unnatural. The I.O, too did not consider it necessary to focus his investigation on this aspect nor attempted to seize any blood stained clothes of P.W.1.
9. The next aspect is that according P.W.1, the emergency ambulance service was summoned at his instance and that he admitted his injured brother in the Govt. hospital, Erode. This he speaks to in his chief examination. However, in his cross examination he contradicts himself when he says that he did not go along with his injured brother in the ambulance. He goes further and says that he did not even inform the ambulance service. Now, P.W.4, the Resident Doctor at the GH would say that he received a dead body of an unknown person brought by one Krishnamoorthy, the ambulance- assistant. Thus, it is evident that P.W.1 has not summoned the ambulance, and the one who has brought the body was the ambulance- assistant Krishnamoorthy. Here it is pertinent to point out that according to P.W.1, his brother was alive when he was shifted from the SOC to the ambulance, but according to P.W.4, Palanisamy was brought dead. Did he then die during travel? Or, was he dead at the SOC? This uncertainty needs corroboration and Krishnamoorthy was the best witness to explain this. Again, if emergency ambulance service was pressed into service to shift Palanisamy from SOC, whether alive or dead, there would have been details about who he was. P.W.14, the IO admits such details will be normally collected by the ambulance-assistant. However, none speaks to this fact. And, if someone other than P.W.1 who could speak to this fact it is again the same Krishnamoorthy. However prosecution did not think it fit to examine Krishnamoorthy and it left a huge void in its pile of evidence. A critical link is thus lost here and in a situation where P.W.1's presence at the SOC is doubted, a lapse, howsoever inconsequential it may appear, would weigh in aid of the defence.
10. Next aspect is that according to P.W.1, he has seen the accused first assaulting his victim with a hammer on the back of latter's head. Then he would say that accused had hit his victim at the same part with a stone. P.W.5, the doctor who conducted postmortem on the body of the dead has noted at least nine external injuries of which two are cut injuries and one stab injury. The doctor admits that these injuries can be caused only by a knife or a sharp edged weapon, as the case may be. But P.W.1 has not seen accused using any of these. This variance has the potential to suspect the very manner by which prosecution's narrative of the commission of the crime and necessarily it brings the alleged presence of P.W.1 at SOC under a cloud of suspicion.
11. These facts apart, there are few other elements that adds to the suspicion that the defence has entertained about the presence of P.W.1 at the SOC. According to P.W.1, there were about four or five houses at about the place where the crime had taken place. He however, does not say that he had raised alarm. The time of occurrence was only about 9 p.m. in the night. Secondly, this only eye witness does not state what did the accused do after the occurrence. There is no case for the prosecution that P.W.1 attempted to catch or nab the accused either singly or in the company of P.W.3, who the prosecution has introduced as the other eye witness. It may be that P.W.3 might have become hostile to prosecution's attempt to prove the charge, but there is no reason for P.W.1 not to speak about P.W.3's presence at the SOC. But he did not speak. The suspicion about P.W.1's presence at the SOC as well as the possibility of his being an eye witness keeps widening if every fact relevant to it are carefully collated and arranged.
12. And, why should the appellant at all murder Palanisamy? The motive attributed by the prosecution was that Palanisamy while staying in the house of the appellant as latter's guest attempted to misbehave with his wife. This incident according to prosecution had happened some two weeks prior to Palanisamy's murder. On this there is no evidence.
13. It is in the back drop of all these, Ext.P-8 and P-10 reports have to be appreciated. Ext.P-8 finds that the blood sample taken both from the dress material that the IO has recovered from the appellant pursuant to latter's information to P.W.23 as well as the dress material obtained from the body of the dead is 'human'. Ext.P-10 says that all belonged to 'O' group. However, in the context of strong suspicion hovering over the alleged presence of P.W.1 at SOC, nothing short of a DNA comparison of the blood in both the set of dress materials referred to above can give an advantage to prosecution's efforts in proving the involvement of the appellant in the murder. But that was not attempted.
14. While a believable evidence of a solitary witness is sufficient to prove a crime, it is a must for every such evidence to pass the litmus test of credibility. The evidentiary wall that the prosecution attempted to build around the appellant has left many a cracks within it and it necessarily has to fall due to its inherent weakness. The defence therefore seize all the advantages.
15. To conclude, this Court finds that the appellant is entitled to benefit of doubt arising out of the doubt as to the presence of P.W.1 at SOC. Consequently, this appeal is allowed and the conviction and sentence imposed on the appellant by the learned I Additional Sessions Judge of Erode District in S.CNo.88 of 2015 dated 04.12.2015 under Sec.302 IPC is set aside and he is acquitted from the charges. Since the appellant is in jail, he is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. The fine amount, if any paid, shall be refunded to him.
(S.N.,J) (N.S.S.,J.) 14.02.2017 ds Index : Yes/No Internet:Yes/No To
1. The I Additional Sessions Judge, Erode.
2. The Inspector of Police, Arachalur Police Station, Erode District.
3. The Public Prosecutor High Court, Madras.
S.NAGAMUTHU,J AND N.SESHASAYEE, J.
ds Crl.A.No.816 of 2016 14.02.2017 http://www.judis.nic.in