THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE N.AUTHINATHAN Criminal Appeal No.757 of 2016 Sambu @ Tamilnilavu (A2) .. Appellant - Vs -
State rep by Inspector of Police, Kolathur Police Station, Salem District.
(Cr.No.11 of 2011) .. Respondent Prayer:- Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned III Additional District and Sessions Judge, Salem in S.C.No.136 of 2012 dated 08.09.2016.
For Appellant : Mr.A.Raghunathan SC for Mr.T.I.Ramanathan For Respondent : Mr.P.Govindaraj Additional Public Prosecutor - - - - -
J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu,J.)
The appellant is the second accused in S.C.No.136 of 2012 on the file of the learned III Additional District and Sessions Judge, Salem. The first accused Mr.Arulmani died during the pendency of the trial and thus the charge against him stood abated. The third accused Mr.Vijay Prabhu was found to be a juvenile and therefore the case against him was split up and the same is now dealt with by the Juvenile Justice Board. The accused 4 and 5 are one Mrs.Selvi and Mrs.Valarmathi. The trial Court framed charges as detailed below:
By judgment dated 08.09.2016, the trial Court acquitted the accused 4 and 5, however convicted the second accused/appellant herein alone under Sections 447 and 302 I.P.C. and sentenced him to undergo simple imprisonment for three months for offence under Section 447 I.P.C. and to undergo imprisonment for life and pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one year for offence under Section 302 I.P.C. Challenging the said conviction and sentence, the appellant / second accused is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case was one Mr.Ponnusamy. The father of the first accused owned landed property in the same village and that was brought for sale in Court auction. The deceased participated and became the successful bidder and thus the said land had been in the possession and enjoyment of the deceased from the year 2006 onwards.
2.2. The 5th accused is the sister of the first accused. The 4th accused is the daughter-in-law of the first accused. The appellant / second accused is not in any way related either to the accused or to the deceased. From 2006 onwards, the first accused and his other family members were demanding the deceased to return the said land to them. This culminated in a strong motive between the two families. It is stated to be the motive for the occurrence.
2.3. It is alleged that on 09.01.2011, around 09.30 a.m. when the deceased was engaged in agricultural operations in the said land, the accused 1 to 3 trespassed into the said land and threatened the deceased to vacate and finally the second accused / appellant snatched and threw away the spade with which the deceased was doing agricultural work and then the accused 2 and 3 held the deceased and the first accused cut him with Koduval repeatedly. The deceased died on the spot.
2.4. P.W.1 witnessed the occurrence. He informed his mother about the occurrence and thereafter he went to Kolathur police station and made a complaint at 11.00 a.m. on 09.01.2011. P.W.12 the then Inspector of Police, registered a case in Crime No.11 of 2011 under Sections 341 and 302 I.P.C.
2.5. Taking up the case for investigation, P.W.12 went to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of P.W.3 and another witness. He recovered the bloodstained earth and sample earth from the place of occurrence. After completing inquest on the body of the deceased, he forwarded the same for postmortem.
2.6. Dr.Saravanan conducted autopsy on the body of the deceased on 09.01.2011 at 04.45 p.m. He found the following injuries:
“External injuries: (1) Blood stains seen over entire face and both forearm. (2) A cut injury about 8x3x7 cm muscles and bone deep injury extending from 4cm below the right angle of the mandible to left angle of mobile exposing major blood vessels, major nerves, muscles cut entirely with reddish clotted blood. (3) A cut injury about 6x5x2 cm above the injury No.(1) below the chin Ones submental area exposing muscles cut reddish colour and clotted blood. (4) A cut injury about 2x2x1 cm over the 2 cm below the aspect of right wrist cut muscle injury with clotted blood. (5) A cut injury about 1x1 cm left central dorsual of hand red and clotted. (6) A cut injury 2x2x1 cm over right middle shoulder. (7) A cut injury 3x3x1 cm over the right upper chest.
Internal examination: (1) Hyoid bone preserved (2) Ribs intact (3) Heart:wt 28 g, chambers empty c/s pale (4) lungs (R) 440 g (L) 420 g c/s pale. (5) Liver – 1.5 kg c/s pale (6) stomach – empty (7) intestines – empty (8) Kidney each 100 gms c/s pale (9) spleen 100 g c/s pale Bladder empty; skull no #, membrane intact; brain 1000 gms c/s pale”
Ex.P8 is the postmortem certificate and Ex.P10 is his final opinion regarding the cause of death. He gave opinion that injuries found on the body of the deceased could have been caused by a weapon like M.O.1 (Koduval). He further opined that the death of the deceased was due to shock and hemorrhage due to the injuries.
2.7. P.W.12 arrested the second accused / appellant on 11.01.2011. While in custody, he made a voluntary confession and the motorcycle (M.O.4) in his possession was recovered. Then, he was sent to the Court for judicial remand. The first accused surrendered before the Court on 19.01.2011. P.W.12 took him into police custody, while in custody, he made a voluntary confession, in which he disclosed the place where he had hidden the koduval. In pursuance of the same, to took the police and witnesses to the place of hideout and produced the koduval. The material objects were sent for chemical examination including the koduval, which revealed that there were bloodstains. On completing the investigation, P.W.12 laid chargesheet against the accused.
2.8. Based on the above, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 12 witnesses were examined, 25 documents and 11 material objects were marked.
2.9. Out of the said witnesses, P.W.1 the son of the deceased is the only eyewitness to the occurrence. He has spoken about the entire occurrence as though he witnessed. P.W.2, wife of the deceased has spoken about the motive. P.W.3 the Village Administrative Officer has spoken about the preparation of the observation mahazar and the rough sketch. P.W.4 has stated that around 11.00 a.m. on the disputed land, he found these accused quarreling with the deceased. P.W.5 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.6 has stated that on hearing the commotion, he rushed to the place of occurrence. He has stated that he did not know the deceased previously as well as the assailants. He has further stated that one person held the deceased and another one cut him. P.W.7 has spoken about the arrest of the second accused, the confession made by him and consequent recovery. P.W.8 has spoken about the confession made by the first accused and the consequent recovery of koduval. P.W.9 has spoken about the postmortem conducted and his final opinion regarding the cause of death. P.W.10 has spoken about the chemical examination conducted on the material objects. P.W.11, the Head Constable has stated that he handed over the hyoid bone to the forensic lab for examination. P.W.12 has spoken about the registration of the case, investigation done and the final report filed.
3. When the above incriminating materials were put to the accused, they denied the same as false. However, they did not choose to examine anyone nor mark any documents. Having considered all the above the trial Court convicted the appellant / second accused alone as detailed in the first paragraph of the judgment and that is how the appellant / second accused has come up before this Court with this appeal.
4. We have heard the learned senior counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and also perused the records carefully.
5. As we have already pointed out, in this case, P.W.1 alone has stated that the appellant is one of the assailants who held the deceased facilitating the first accused to cut the deceased. It is seen from the records that the appellant had nothing to do either with the first accused or with the others. Thus, absolutely there is no motive. Secondly, the presence of P.W.1 at the place of occurrence is by chance. According to his evidence, he went along with the deceased to the disputed land for watering. He has further stated that at that time, the accused 1 to 3 came to the place of occurrence and participated in the crime. But, in the F.I.R., he has mentioned the names of the accused 1 and 2 and one unidentifiable person as the assailants. It is not as though the third accused is not already known to P.W.1. Had it been true that A1 to A3 had participated in the crime and had it been true that P.W.1 witnessed the occurrence, in Ex.P1, he would have, by all means, mentioned about the presence and participation of A1 to A3. But as we have already pointed out, he has mentioned only about the presence and participation of A1 and A2 and yet another person who was unknown to him. This creates enormous doubt in the very presence of P.W.1.
6. Secondly, during cross examination, P.W.1 has admitted that there is a vast difference between veechu aruval and koduval. In his evidence, he has stated that the deceased was cut by the first accused with koduval, whereas, he has been contradicted by Ex.P1, wherein he has stated that the first accused cut the deceased with veechu aruval. It is not as though he was not aware of the difference between these two kinds of weapons. Knowing fully well that veechu aruval and koduval are different, in the earliest statement (Ex.P1), he has stated that the deceased was cut by veechu aruval, whereas during his evidence, he has stated that the deceased was cut with koduval. M.O.1 is a koduval and not veechu aruval. There is no explanation for this contradiction also.
7. Though, it is stated that when P.W.1 went to the police station, he was wearing bloodstained clothes, they were not recovered and produced. Above all, the F.I.R. which is stated to be registered at 11.00 a.m. reached the hands of the learned Magistrate only at 01.30 p.m. From the above contradictions and improbabilities there arises a strong doubt about the very presence of P.W.1 at the place of occurrence.
8. At this juncture, we should state the legal position. In Vadivelu Thevar Vs. State of Madras reported in AIR 1957 SC 614 the Hon'ble Supreme Court has held that if the the solitary witness is fully believable, then, even in the absence of any corroboration from any other independent source, the said evidence can be the sole foundation for the conviction of the accused. But if the evidence of the solitary evidence is partly believable in the absence of any corroboration from any other independent source, on material particulars, it would not be safe to act upon the said evidence of the solitary witness. In this case, the case projected by the prosecution as against the accused 4 and 5 has been rejected by the trial Court. The evidence of P.W.1 is highly doubtful as we have already discussed. Therefore, in our considered view, in the absence of corroboration from any other source on material particulars, it will not be safe to rely on the evidence of P.W.1 and sustain the conviction. We hold that the prosecution has, thus failed to prove the case against the second accused / appellant beyond reasonable doubt. Therefore, he is entitled for acquittal.
9. In the result,
(i) The appeal is allowed and the conviction and sentence imposed on the appellant / second accused by the learned III Additional District and Sessions Judge, Salem in S.C.No.136 of 2012 dated 08.09.2016 is set aside and the appellant is acquitted.
(ii) The fine amount, if any paid, shall be refunded to him.
(iii) 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.
Index : Yes kk (S.N.J.) (N.A.N.J.) 18.01.2017
S.NAGAMUTHU,J.
& N.AUTHINATHAN,J.
kk To
1. The III Additional District and Sessions Judge, Salem.
2. The Inspector of Police, Kolathur Police Station, Salem District.
3. The Public Prosecutor, Madras High Court.
Crl.A.No.757 of 2016
18.01.2017 www.judis.nic.in