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2002 DIGILAW 1417 (MAD)

Chandramoorthy and Another v. State of Tamil Nadu

2002-11-15

P.D.DINAKARAN, P.SHANMUGAM

body2002
Judgment :- P.D.DINAKARAN, J. The appellants are the accused 1 and 2 in S.C.No.124 of 1995 on the file of the learned Principal Sessions Judge, Tuticorin, who were convicted for an offence punishable under Sections 341 and 302 read with Section 34 of the Indian Penal Code and sentenced for one month simple imprisonment for the offence under Section 341 of Indian Penal Code and for life imprisonment for the offence punishable under Section 302 read with Section 34 Indian Penal Code, both to run concurrently, by judgment dated 20.7.1998. 2. The appellants, who are accused 1 and 2, along with one another accused by name Dharmar were charged for an offence punishable under Section 341 and 302 read with 34 Indian Penal Code with regard to alleged murder of one Pitchiah at about 6.00 pm on 17.12.1993 between Kothali and Kollankinaru Village, at the outskirts of Kothali village within the jurisdiction of Kadambur Police Station, by inflicting fatal injuries on the vital parts of the body of the deceased Pitchiah, which resulted in his instantaneous death. 3.1. The case of the prosecution is that the deceased Pitchiah, who is the husband of P.W.1, had three daughters. The first two daughters were already given in marriage and the third daughter, Ayyammal, who was examined as P.W.3, was asked for marriage to the first accused (Chandramoorthy). Since P.W.1 and her family members were not willing for the marriage between P.W.3 and first accused, P.W.3 was given in marriage to one Radhakrishnan. The marriage between Radhakrishnan and P.W.3 sowed the seeds of enmity between the family of the deceased and the first accused. 3.2. On the fateful day, namely on 17.12.1993 at 4.00 pm, the appellants, who are accused 1 and 2, along with one another accused Dharmar came to the house of P.W.1 and threatened P.W.3 that they would see that Pitchiah, who had gone to Kothali Esakkiamman temple, would not return home. At that time, P.W.1’s second son-in-law Mariappan, who was examined as P.W.2 came to the residence of P.W.1 from Kovilpatti. Apprehending that the accused might cause some danger to her husband Pitchiah, P.Ws.1 and P.W.2 went in search of Pitchiah from 4.30 pm. When P.Ws. 1 and 2 came near Kothali village at about 6.00 pm, they saw accused 1 and 2, along with one another accused Dharmar sitting under the Udai tree. Apprehending that the accused might cause some danger to her husband Pitchiah, P.Ws.1 and P.W.2 went in search of Pitchiah from 4.30 pm. When P.Ws. 1 and 2 came near Kothali village at about 6.00 pm, they saw accused 1 and 2, along with one another accused Dharmar sitting under the Udai tree. When Pitchiah was returning from Esakkiamman temple on the way to his house, the first accused ran and gave cuts to Pitchiah by using an Aruval and the same was thwarted by Pitchiah with both hands. The right hand wrist of Pitchiah was almost severed and hanging. In the meanwhile, another accused Dharmar ran and cut Pitchiah by an Aruval on the right hand shoulder and the second accused ran and cut Pitchiah by an Aruval at his neck, and as a result Pitchiah fell down immediately. The first accused again cut Pitchiah at his chin and another accused Dharmar cut Pitchiah by an Aruval on the left flank. As a result, Pitchiah died instantaneously on the spot. On hearing P.Ws.1 and 2 shouting and crying, all the three accused ran away from the scene of occurrence with their weapons. 3.3. As it was raining at that time, nobody came forward to help P.Ws.1 and 2 and therefore, they returned home and on the next day morning, namely on 18.12.1993, they went to Kadambur Police Station and lodged the complaint, which is marked as Ex.P1. On receipt of the complaint (Ex.P1), the Investigation Officer (P.W.13) went to the spot in the presence of Village Administrative Officer (P.W.5) and Village Assistant (Thalaiyari) (P.W.6), prepared a sketch of the scene of occurrence, which is marked as Ex.P18, and conducted inquest on the dead body of deceased Pitchiah in the presence of witnesses and Panchayatdars and prepared inquest report marked as Ex.P19, examined witnesses and recorded their statements and thereafter shifted the body of deceased Pitchiah to Government Hospital. Postmortem was conducted by Dr.Meena, who was examined as P.W.8, through whom a postmortem certificate was marked as Ex.P12. On 20.12.1993, the Investigation Officer (P.W.13) arrested the accused 1 and 2 herein and one another accused Dharmar. Postmortem was conducted by Dr.Meena, who was examined as P.W.8, through whom a postmortem certificate was marked as Ex.P12. On 20.12.1993, the Investigation Officer (P.W.13) arrested the accused 1 and 2 herein and one another accused Dharmar. During the course of investigation, the third accused Dharmar died and therefore, the final report was filed only against the first and second accused for the offences under Sections 341 and 302 read with 34 Indian Penal Code, pursuant to which the case was committed for trial. 4.1. On behalf of the prosecution 13 witnesses (P.Ws.1 to 13) were examined, through whom 21 documents (Exs.P1 to P21) were marked, of which it is suffice to refer the following witnesses and documents that are relevant. The wife of the deceased Pitchiah was examined as P.W.1; son-in-law of deceased Pitchiah and P.W.1 was examined as P.W.2, one Ayyammal viz., third daughter of deceased Pitchiah and P.W.1, was examined as P.W.3. 4.2. P.W.3 deposed that the accused 1 and 2 along with one another accused Dharmar came to the house of the deceased and P.W.1, where P.W.3 was present and threatened that the deceased Pitchiah, who had gone to Kothali Esakiamman temple, would not return home. P.Ws.1 and 2 were cited as eye-witnesses narrating the occurrence. P.W.4 is the Poojari of Esakkiamman temple, who deposed that the deceased Pitchiah came to the temple on the fateful evening. P.Ws.5 and 6 are Village Administrative Officer and Village Assistant (Thalaiyari), who spoke about the inquest conducted on the body and the investigation by P.W.13 based on the complaint lodged by P.W.1 marked as Ex.P1. P.W.8 is the Doctor, who conducted postmortem, through whom Postmortem Certificate marked as Ex.P.12 was marked. 5. In the light of the evidence set out above, the learned Principal Sessions Judge, Tuticorin, by judgment dated 20.7.1998 in S.C.No.124 of 1995 found the accused 1 and 2 guilty for the offence punishable under Section 341 and 302 read with 34 of Indian Penal Code and sentenced the accused for one month simple imprisonment for the offence punishable under Section 341 Indian Penal Code and life imprisonment for the offence punishable under Section 302 read with 34 Indian Penal Code, both to run concurrently. Hence the above appeal. 6.1. Hence the above appeal. 6.1. Mr.A.Padmanabhan, learned counsel for the appellants effectively brought out the anomalies in the case of the prosecution pointing out the strange conduct and behaviour of P.Ws.1 and 2 immediately after the alleged murder of Pitchiah by the accused 1 and 2 and one another Dharmar, which was said to be witnessed by them, and contends that the evidence of P.Ws.1 and 2 are not trustworthy. 6.2. Mr.A.Padmanabhan, learned counsel for the appellants invited our attention to the improbabilities in the evidence of P.Ws.1 and 2, which was the foundation to the case of the prosecution. 7. We have given careful consideration to the submissions of the learned counsel for the appellants and have minutely examined the evidence. 8. P.W.1 is the wife of the deceased Pitchiah. P.W.2 is the second son-in-law of the deceased Pitchiah and P.W.1. As per the evidence of P.Ws.1 and 2, the occurrence had taken place at about 6.00 pm on 17.12.1993 in a jungle like place, which is hardly 2 kilometers away from the permanent place of residence of P.W.1 and the deceased. Both P.Ws.1 and 2 have stated that the occurrence had taken place at 6.00 pm and it was raining at that time and therefore, they could not get any help from villagers, hence they returned home and stayed that night in the house and went to the Kadambur Police Station next day morning at 8.00 am and lodged a complaint marked as Ex.P1. This portion of evidence of P.Ws.1 and 2 is totally unbelievable. It is quite improbable to imagine P.W.1, wife of the deceased Pitchiah, who is said to have witnessed the heinous murder of her husband by her naked eyes, would leave the body of her husband at the scene of occurrence itself unmindfully, even though it was raining, and return to her house, spend the night at her residence and then lodge the complaint on the next day at Kadambur Police station. It is not her case that there was no male member in the family to assist because P.W.2 himself is second son-in-law of the deceased Pitchiah and P.W.1, who indeed went in search of Pitchiah on the eve of 17.12.1993, apprehending accused would cause danger to the deceased, and is also said to be an eye-witness to the occurrence. 9. It is not her case that there was no male member in the family to assist because P.W.2 himself is second son-in-law of the deceased Pitchiah and P.W.1, who indeed went in search of Pitchiah on the eve of 17.12.1993, apprehending accused would cause danger to the deceased, and is also said to be an eye-witness to the occurrence. 9. That apart, P.Ws.1 and 2 have stated that the house of Village Assistant (Thalaiyari)(P.W.6) is located five houses away from the house of the deceased and P.W.1. P.Ws.1 and 2, who are to have directly witnessed the brutal murder of Pitchiah at about 6.00 pm on 17.12.1993, even after returning to the village and staying that night in her residence, have not chosen to inform about the occurrence to the Village Assistant (Thalaiyari) (P.W.6). This conduct and behaviour of P.Ws.1 and 2, who are nonetheless the wife and son-in-law of the deceased Pitchiah respectively, raises doubt in our minds to question the very credibility of the testimony of P.Ws.1 and 2. 10. Moreover, P.Ws.1 and 2 had chosen to lodge the complaint to the police about the atrocious murder only at about 8.00 am on 18.12.1993 before the Kadambur police station. In the complaint, marked as Ex.P1, P.Ws.1 and 2 have specifically stated that they directly witnessed the overt act of each of the accused attacking the deceased Pitchiah on vital parts of the body, inflicting fatal injuries by aruval, which caused the instantaneous death of the deceased Pitchiah. Even though P.W.1 had explained that since it was raining on the night of 17.12.1993, they could not lodge the complaint earlier than 8.00 am on 18.12.1993, no convincing explanation comes out from P.Ws.1 and 2 for not reporting the occurrence immediately to the Village Administrative Officer (P.W.5) or Village Assistant (Thalaiyari) (P.W.6) or any of the villagers, in spite of their direct witness to the cruel murder of the deceased Pitchiah. The story of the prosecution in this regard, in our considered opinion, is highly improbable, unreliable and therefore is to be rejected as totally fanciful and imaginary as the same is tainted with concocted evidence of P.Ws.1 and 2. 11. The story of the prosecution in this regard, in our considered opinion, is highly improbable, unreliable and therefore is to be rejected as totally fanciful and imaginary as the same is tainted with concocted evidence of P.Ws.1 and 2. 11. The explanation of P.Ws.1 and 2 that it was raining on the night of 17.12.1993 and therefore, leaving the body of the deceased Pitchiah at the scene of occurrence, they returned to the village, stayed that night and then went to the Kadambur Police Station next day at 8.00 am, and the hypothesis suggested for their conduct, viz., leaving the body of the deceased at the scene of occurrence as it was raining after the occurence, is in our considered opinion, inconceivable and farcical, and gives room to question the very credibility of their evidence. Every evidence relied upon for a safe conviction should have a probative link, strong or weak, but the same must be made out with reasonability and certainty. Once the evidence of P.Ws.1 and 2, which is the foundation to the prosecution case is itself collapsed for want of reliability and credibility, we are convinced that it may not be safe to convict the accused merely based on the evidence of the Investigation Officer (P.W.13), Doctor (P.W.8) who conducted the postmortem, and postmortem certificate marked as Ex.P12, in the absence of any other direct or circumstantial evidence to hold the accused guilty. 12. Hence, holding that the prosecution has failed to prove its case beyond all reasonable doubt, we are obliged to interfere with the order of conviction and sentence dated 20.7.1998 in S.C.No.124 of 1995 of the learned Principal Sessions Judge, Tuticorin, set aside the same, allow the appeal, with a direction to the respondent to release the accused forthwith, unless and otherwise they are required in any other crime. No costs.