The appellant is the sole accused in S.C.No.22 of 2003, on the file of the learned Additional District Sessions Judge, Dindigul District. He stood charged for the offence punishable under Section 302 of the Indian Penal Code. By Judgment dated 22.02.2013, the Trial Court has convicted the appellant and sentenced him, as detailed below:-
Section of Law Sentence of imprisonment Fine amount 302 IPC To undergo imprisonment for life.
Rs.1,000/- in default to undergo simple imprisonment for six months. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, as put forth by its witnesses, is consciously narrated below:-
The deceased, in this case, was one Mrs.Chandra. PW-1 is the husband of the deceased. PW-1 married the deceased six years prior to the occurrence. After the marriage, they were living in Chitharevu Village. The accused also belonged to the same village. PW-1 and the accused were working as daily labourers in Nirmal Wine Shop. In due course, the accused developed illicit intimacy with the wife of PW-1. When PW-1 came to know about their illicit intimacy, he warned both of them. On account of the same, the accused developed grudge over the deceased and PW-1. One month prior to the occurrence, the accused threatened PW-1 and the deceased that he would kill both of them. PW-1 and the deceased informed about the threat made by the accused to PW-6 and PW-2, the mother-in-law of the deceased.
2.2. On 04.10.2001, in the morning, PW-1 went to the Wine Shop. At about 11.00 AM, the accused came to the house of the deceased. On seeing the accused, the deceased had scolded him and sent him out of the house. PW-1 returned back home at 11.00 PM. The deceased informed him about the above incident. Since it was late night, PW-1 did not disclose the same to anybody. On 05.10.2001, the deceased and PW-2 went to the nearby shop for the purpose of purchasing groceries. While they were returning home, the accused suddenly emerged from acacia trees and cut the deceased repeatedly on her back side neck with billhook and severed the head and ran away from the place of occurrence. The occurrence took place in front of the house of PW-7 at 09.00 AM, on 05.10.2001. On seeing the occurrence, PW-2 raised alarm. On hearing the alarm, the sister-in-law of PW-1 came out of the house. The husband of the deceased came to the place of occurrence and found the dead body lying in a pool of blood and the head severed. PW-1 went to Pattiveeranpatti Police Station and made a complaint. PW-13, on receipt of complaint, registered a case in Crime No.382 of 2001 for the offence under
Section 302 of the Indian Penal Code. EX-P1 is the complaint and EX-P16 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the investigation to the Inspector of Police.
2.3. Taking up the case for investigation, at 11.30 AM, on 05.10.2001, PW-14 proceeded to the place of occurrence, prepared an Observation Mahazer [EX-P2] and a Rough Sketch [EX-P17], showing the place of occurrence in the presence of one Chitharevi, Village Administrative Officer and one Chandrasekar, Village Assistant. He recovered bloodstained earth [EX-P3] and sample earth [EX-P4] from the place of occurrence. Then, he conducted inquest on the body of the deceased. EX-P18 is the inquest report. Then, he forwarded the dead body for postmortem.
2.4. PW-10 - Dr.Tamilarasan conducted autopsy on the body of the deceased. EX-P7 is the postmortem certificate. He noticed the following injuries:-
"1) [Torn] cut injury over right occipital area 10 X 4 CM X bone deep,
2). Cut injury above downwards 1 CM below injury 1 size 4 X 1/2 X 1/2 CM.
3).Cut injury 1 CM below right lower jaw 15 CM in length from mandible back of neck, cutting thor [torn] all structures of neck, severing the cervical spine between 3 & 4 skin wound clear and well [torn] injury below the skin lacerated.
4. Cut injury over right side of neck from mid clavicular region to middle of neck, the skin edges of the above injuries are clear and well defined, Thorax symmetrieal heart chambers empty. Lungs pale treachia [NC] Hyoid severed cargilage level. Hyoid broken, abdomen slightly distended. Stomach [NC] 150 ml of partially digested food:".
He gave opinion that the deceased would appear to have died of shock and hemorrhage due to decapitation about six to twelve hours prior to the autopsy.
2.5. On 06.10.2001, PW-14 arrested the accused in front of a Theatre, belonging to one Ayyampalayam Alagesan. On such arrest, the accused gave a voluntary confession, in which he disclosed the place, where he had hidden the billhook [MO-1]. The admissible portion of the confession statement is EX-P4. In pursuance of the same, the accused took the police and the witnesses to the hide out and produced the billhook. PW-14 recovered the same under a mahazer. The accused also produced lungi [MO-9] and a Polyester Full Hand Shirt [MO-10]. On returning to the Police Station, PW-14 forwarded the accused to the Court for judicial remand. He also handed over the material objects to the Court. On completing the investigation, he laid charge sheet against the accused on 30.11.2001.
2.6. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, on the side of the prosecution, 14 witnesses were examined, 21 documents were marked and 16 material objects were produced.
2.7. When the Trial Court examined the accused under
Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he neither choose to examine any witness nor to exhibit any document. His defence was a total denial. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
3. The learned Senior Counsel appearing for the appellant submitted that in order to prove the alleged offence, the prosecution mainly relies on the evidences of PW-1 and PW-2. According to him, PW-2 was residing two kilometers away from the house of PW-1 and thus, her presence, at the time of occurrence, is highly doubtful. The learned Senior Counsel further submitted that PW-1 and PW-2 have categorically stated that the deceased did not take food in the morning. PW-2, in her chief-examination has stated that she and the deceased went to the nearby shop only for the purpose of purchasing grocery items to prepare morning food. While they were returning home, the occurrence took place and the grocery items were found scattered at the place of occurrence. The learned Senior Counsel for the appellant further submitted that PW-14, the Investigating Officer, has stated that had it been true that the grocery items were found scattered at the place of occurrence, he would have noted the same in the observation mahazer. Thus, according to the learned Senior Counsel, the evidence given by PW-2 that she accompanied the deceased to the grocery shop and while they were returning home, the occurrence took place cannot be believed and the very presence of PW-2 at the place of occurrence is false.
4. The learned Senior Counsel further submitted that the evidence of PW-10, the doctor, who conducted autopsy on the body of the deceased, reveals that partly digested food particles were found in the stomach. He has also stated that the deceased would have taken food lastly an hour prior to the occurrence, whereas, according to the evidences of PW-1 and PW-2, the deceased did not take food in the morning. Thus, according to the learned Senior Counsel, since the deceased did not take food in the morning and the explanation given by PW-2 for her presence at the time of occurrence is not satisfactory and it is highly doubtful, the occurrence would not have taken place, at it is projected by the prosecution. The Trial Court, according to the learned Senior Counsel, without considering the above aspects, has convicted the accused and sentenced him to undergo imprisonment for life. Referring to the above grounds, the learned Senior Counsel has prayed for acquittal of the accused.
5. The learned Additional Public Prosecutor, however, opposed this Criminal Appeal. According to him, it is a day light brutal murder, where the accused cut the deceased repeatedly and severed the head from the dead body. PW-1, the husband of the deceased, on hearing the information, rushed to the place of occurrence and made complaint. PW-2, the mother-in-law of the deceased, who accompanied the deceased to the nearby shop to purchase grocery items, has vividly spoken about the occurrence. Though PW-2 is a solitary eye-witness to the occurrence, her evidence is cogent and convincing. Under such circumstances, no infirmity can be found on the conviction and sentence recorded by the Trial Court. Thus, the learned Additional Public Prosecutor prayed for dismissal of the Criminal Appeal.
6. We have given our anxious consideration to the above submissions made by the learned counsel on either side and perused the materials available on record.
7. It is the case of the prosecution that the accused developed illicit intimacy with the deceased. Since PW-1 warned the accused and the deceased, the accused has got a grudge against the deceased and PW-1. On 04.10.2001, when the deceased alone was in her house, the accused came there. The deceased asked him to go out of the house. Thereafter, according to the case of the prosecution, on 05.10.2001, while the deceased and PW-2 were returning home, after purchasing the grocery items, the accused suddenly emerged from the acacia trees and inflicted cut injuries repeatedly on the back side neck of the deceased and severed the head from the dead body. On hearing the alarm, PW-1 came to the place of occurrence. Similarly, PW-3 and PW-4 also came to the place, after the occurrence.
8. PW-1 is not an eye-witness to the occurrence and he is a hearsay witness. In order to prove the occurrence, the prosecution mainly relies on the evidence of PW-2 alone. PW-2, the mother-in-law of the deceased, was examined as an eye-witness to speak about the occurrence. She is also closely related to the deceased. In such a position, since she was chance witness and closely related, the prosecution should explain to the satisfaction of the Court as to what was the occasion for PW-2 to be present at the place of occurrence. In the absence of any explanation as to why and what for she came to be present at the place of occurrence, it is difficult to believe her very presence. In our considered view, going by the conduct of PW-2, her explanation is difficult to be believed.
9. It is the evidence of PW-2 that she was residing two kilometres away from the house of the deceased. Furthermore, it is the specific evidence of PW-2 that she along with the deceased went to the nearby shop to purchase groceries for the purpose of preparing morning food. After purchasing the groceries, while they were returning home, the occurrence took place. PW-2 has also stated that the grocery items were all found scattered at the place of occurrence. But, PW-14, the Investigating Officer, who rushed to the place of occurrence, within a short span of time, has not noted any grocery items from the place of occurrence in the Observation Mahazer [EX-P2]. During cross-examination, PW-14 has stated that had it been true that the grocery items were found scattered at the place of occurrence, he would have noted the same. Furthermore, even according to PW-2, the occurrence took place for about ten minutes in a busy locality and more than 50 persons gathered at the place of occurrence. However, no one came forward to catch hold the accused and no independent witness was examined by the prosecution to speak about the occurrence. Further, PW-7, in front of whose shop, the occurrence took place, has not stated anything incriminating against the accused. Except PW-2, none of the witnesses had deposed anything incriminating against the accused. We have gone through the evidence of PW-2 carefully. We do find that the presence of PW-2, at the place of occurrence, is highly doubtful. Thus, in our considered view, in the absence of any independent witness to corroborate the evidence of PW-2, it is not safe to convict the accused.
10. We are conscious of the legal proposition that it is not quantity of the evidence, but the quality that matters. PW-2 happens to be a solitary witness, whose evidence does not draw any corroboration from any independent witness, it is difficult for this Court to sustain the conviction. It is not the law that the evidence of a solitary witness cannot be the foundation for conviction. The evidence of a solitary witness can be the foundation for conviction, provided, it inspires the confidence of the Court, in which case, the Court need not necessarily look for any corroboration from any independent source. Here, in this case, the evidence of PW-2 is not free from doubt and the same is shrouded by doubts and that there is also no corroboration also from any independent source.
11. As we have already pointed out, the evidence of PW-2, being very vague, cannot fulfill the basis for conviction. The evidence of PW-2, which does not corroborate from any other independent source, do not pass the test of close scrutiny and thus, we find it very difficult to act upon her evidence. From the above unnatural conduct of PW-2, we are of the considered view that she would not have seen the occurrence at all and thus, we reject the evidence of PW-2. However, the Trial Court has convicted the accused acting on the evidence of PW-2 by believing her.
12. Now, reverting back to the medical evidence, it is the opinion of the doctor, who conducted autopsy on the body of the deceased, that partly digested food particles were found in the stomach of the deceased. PW-1 has stated in his evidence that he and the deceased and PW-2 did not take food in the morning and they had their food only last night. The relevant portion of the evidence given by PW-1 reads as follows:-
?ehd; vd; kidtp> vd; mk;kh MfpNahh; md;W fhiyapy; rhg;gpltpy;iy> Kjy; ehs; ,uT rhg;gpl;lJ jhd;.?
13. PW-2, in her chief-examination, has stated that while the deceased and PW-2 were returning home, after purchasing grocery items for preparing morning food, the accused suddenly emerged from the acacia trees and inflicted cut injuries repeatedly on the back side neck of the deceased and severed the head from the dead body of the deceased. However, PW-2, during cross-examination, has stated that on the date of occurrence, nobody had taken food in the morning. The relevant portion of the evidence given by PW-2 is as follows:-
?md;W fhiyapy; rhg;ghL ahUk; ehq;fs; rhg;gpltpy;iy.?
14. The doctor, who conducted autopsy on the body of the deceased, has deposed as follows:-
?filrpahf czT mUe;jpa xU kzpNeuj;jpy; ,we;jpUf;fyhk; vd;why; rhpjhd;. cly; guhTk; tpiug;G ,Ue;jJ> jiyapy; ,Ue;J fhy; tiu tpiug;G jd;ik KOik mila ,wg;gpy; ,Ue;J 12 kzpNeuk; MFk; vd;why; rhpjhd;. ,we;jjpypUe;J 24 kzpNeuj;jpypUe;J 36 kzp Neuj;jpy; tapW cg;Gk; vd;why; rhpjhd;. tapW cg;g ,wg;gpypUe;J 12 kzp Neuj;jpw;F NkyhFk;. ,we;j egh; gpNuj ghpNrhjidapypUe;J 12 kzp Neuj;jpw;F Kd;Ng ,we;jpUf;f tha;g;Gs;sJ.?
15. The doctor had deposed that the deceased would have taken food lastly an hour prior to the occurrence. The doctor also found rigor mortis all over the body of the deceased. The doctor [PW-12] had commenced postmortem at 05.00 PM. The doctor further deposed that the deceased would appear to have died of 12 hours prior to the postmortem. Thus, in our considered view, the occurrence would not have taken place at 09.00 AM, as it is projected by the prosecution. Thus, the cumulative effect of all the above facts would go to show that the presence of PW-2, at the time of occurrence, is highly doubtful. As we have already concluded, PW-2 is not believable and acting on her evidence, the accused cannot be convicted. Thus, we hold that the prosecution has failed to prove the case beyond all reasonable doubts and the appellant is entitled for acquittal.
16. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the appellant by the learned learned Additional District Sessions Judge, Dindigul District, in S.C.No.22 of 2003, dated 22.02.2013, is set aside and the appellant is acquitted of the charge. Fine amount, if any paid, shall be refunded to the appellant. 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.
To
1.The Additional District Sessions Judge, Dindigul District.
2.The Inspector of Police, Pattiveeranpatti Police Station, Dindigul District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.