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2003 DIGILAW 1189 (MAD)

Pachamuthu v. State by Inspector of Police

2003-07-31

A.S.VENKATACHALA MOORTHY, S.SARDAR ZACKRIA HUSSAIN

body2003
Judgment :- A.S. Venkatachalamoorthy, J. 1. This Court by an order dated 20.3.2003, nominated Mr.N. Doraisamy as Legal Aid Counsel for prosecuting the matter of behalf of the appellant herein. He has argued this matter and hence whatever fees he is entitled, shall be paid to him by the Legal Services Authority. 2. The appellant/accused was charged under Sections 392, 302 and 201, I.P.C., for causing murder of one Sathiaseelan at about 12.00 noon on 19.5.1999 in the road leading to Pugaipatti village from Kunjaram Village, near the border of Veeramangalam village in the sugarcane field of one Babulal and also having committed robbery of Rs. 3,000. The appellant/accused was found guilty by the learned Sessions Judge by her judgment dated 13.10.2000 in S.C.No. 82 of 2000. Being aggrieved by the said judgment, the present appeal has been filed by the accused. 3. The short facts of the prosecution case are as follows: (a) The villages Pugaipatti, Kunjaram and Veeramangalam are adjoinged villages. P.W.2 Saroja is the wife of the deceased and they belong to Kunjaram village, while the accused belongs to Pugaipatti village. P.W.2 is eking her livelihood as a cook in the Noon-meal Centre in the said village. (b) The deceased had borrowed a sum of Rs. 1,000 from one Chinnathambi Padayachi, who wanted to hen from the deceased. The deceased went to Pugaipatti village for the purpose of handing over the same, but however, he did not return. P.W.2 was under the impression that as the deceased used to take liquor, he would come back after some time. (c) P.W.6 Sigamani is a vegetable vendor and is residing at Pugaipatti village. About one year prior to his examination in the Court, on a Wednesday, at about 10.00 a.m., the deceased came to his shop and gave him Rs. 3,000. After couple of hours, by about 12.00 noon, he took back the money from P.W.6. Before so handing over P.W.6 counted the money and the accused noticed this. Both the accused and deceased then requested P.W.6 to hire a cycle for them from the shop of one Narasimha Mooper. Both the accused and deceased thereafter went in the said cycle and accused alone came back at about 1.00 p.m. The accused in fact took a sum of Rs. 10 from P.W.6 and paid the hire charges of Rs. Both the accused and deceased then requested P.W.6 to hire a cycle for them from the shop of one Narasimha Mooper. Both the accused and deceased thereafter went in the said cycle and accused alone came back at about 1.00 p.m. The accused in fact took a sum of Rs. 10 from P.W.6 and paid the hire charges of Rs. 1.50 and left the place without even handing over the balance to P.W.6. (d)P.W.8 is a resident of Kunjaram village and is an agricultural coolie. He knows both the accused and the deceased. About one year prior to the occurrence, on a Wednesday, he went to Kottal road for the purpose of purchasing provisions. He noticed the accused and deceased going in a cycle and after covering some distance, the accused took the deceased into a sugarcane field. Thereafter P.W.8 left the place. (e) P.W.1 is the Village Administrative Officer of Pugaipatti Village. On 25.5.1999 at about 12.00 noon, when he was in the Panchayat Office, the accused appeared before him and confessed that he murdered the deceased on 19.5.1999 at about 12.45 p.m. in the backyard of one Babulal in Veeramangalam village. P.W.1 reduced the statement into writing and obtained the left thumb impression of the accused. Ex.P.3 is the said statement. Thereafter, P.W.1 and the village assistant took the accused to the police station. At the Police Station P.W.1 handed over the accused and Ex.P-3 statement recorded by him. (f) P.W.13 is the Sub-Inspector of Police before whom P.W.1 appeared and gave a complaint Ex.P-1 at 3.00 p.m. on 20.5.1999 to the effect the deceased was missing. On the basis of the said complaint, P.W.13 registered crime No. 163 of 1999 under Section 174, Cr.P.C. and prepared printed F.I.R. Ex.P-12 and the same was sent to the Tahsildar of Ulundurpet. P.W.13 thereafter proceeded to Veeramangalam village and after inspecting the scene, prepared Ex.P-2 observation mahazar and Ex.P.13 Sketch in the presence of witnesses. The assistance of photographer was sought to take necessary photographs. An inquest over the body of the deceased was held in the presence of Panchayatdars and Ex.P-14 inquest report was prepared. Thereafter, along with a requisition, the body of the deceased was sent to the Government Hospital, Ulundurpet, for the purpose of conducting post mortem. (g) P.W.10 is Doctor Ezhilmathi attached to the Government Hospital, Ulundurpet at the relevant time. An inquest over the body of the deceased was held in the presence of Panchayatdars and Ex.P-14 inquest report was prepared. Thereafter, along with a requisition, the body of the deceased was sent to the Government Hospital, Ulundurpet, for the purpose of conducting post mortem. (g) P.W.10 is Doctor Ezhilmathi attached to the Government Hospital, Ulundurpet at the relevant time. The Doctor, on the basis of requisition received from the Sub-Inspector of Police, commenced post mortem on the body of the deceased Sathiaseelan in the afternoon of 21.5.1999. Ex.P-10 is the post mortem certificate issued by the Doctor. In Ex.P-10, the Doctor had noted the following: “On the body of a male whole body is bloated with decomposition changes seen all over the body. Face is swollen, cyanosed and suffered. Eyes closed, mouth opened, tongue within the mouth, bitten in between the teeth Maggots and flies seen in the oral cavity. Hands empty, skin peeling seen all over the body. Scalp hair and scalp skin loosening seen. Both sides of whole neck is swollen. O/D Neck : Skin of face and neck is black in colour underlying muscles, superficial tissue is reddish and congested. Hyoid bone is preserved. O/D Thorax : No fracture of ribs u Heart pale u Dermal aspect of Myocardium shows batches of Necrocytosis. O/D Abdomen : Stomach contains 100 ml of undigested food particles. All visceral organs pale. Liver enlarged. Intestines bloated. O/D Head : No fracture of skull bone : Brain liquefied”. The doctor reserved his opinion, pending toxicological analysis report. Ex.P-11 is the final opinion given by the Doctor, wherein it is stated that the deceased appear to have died of asphyxia due to smothering and neck compression. (h) The charge was then altered to one under Section 302, I.P.C. and Ex.P-15 is the express report and the same was sent to the Judicial Magistrate and copies to the superiors. (i) P.W.14 is the Inspector for Police, who took over investigation and proceeded to the scene of occurrence and prepared Ex.P-5 observation mahazar and Ex.P-16 sketch in the presence of witnesses. On 26.5.1999 he visited Pugaipatti village and recorded the statement of PW-7 and others. On the same day he examined P.W.8 Mayavan, Ramsamy and others in Kunjaram village. On the following day, the witnesses Kandasamy, Chinnasamy and others were examined and their statements were recorded. On 26.5.1999 he visited Pugaipatti village and recorded the statement of PW-7 and others. On the same day he examined P.W.8 Mayavan, Ramsamy and others in Kunjaram village. On the following day, the witnesses Kandasamy, Chinnasamy and others were examined and their statements were recorded. On 1.8.1999 he examined the Doctor, who conducted post mortem and also other witnesses and ultimately filed his final report on 14.10.1999. 4. When questioned under Section 313 of Crl.P.C. the accused denied having committed any crime. 5. This is a case of circumstantial evidence. This Court has to see whether the prosecution has established various circumstances relied on by it and whether those established circumstances would lead to the one and only irresistible conclusion that it was the accused, who should have committed the murder of the deceased. 6. The circumstances relied on by the prosecution are, (a) The evidence of PW-6, who saw the deceased and accused at about 12.00 noon going in a cycle and accused alone coming back at 1.00 p.m. (b) The evidence of PW-8, who saw the accused and deceased going in a cycle and the accused taking the deceased to the sugarcane field. (c) The evidence of PW-1 Village Administrative Officer, before whom the accused gave a confession statement on 25.5.1999. (d) The recovery of a sum of Rs. 500 and also MO-1 towel belonging to the deceased, pursuant to the confession statement made by the accused to the police. 7. PW-6 is a vegetable vendor in Pugaipatti village. He has deposed, about one year prior to his examination in the Court, on a Wednesday at about 10.00 a.m. the deceased came and gave a sum of Rs. 3,000 with a request to keep it safely and at about 12.00 noon he again came and took back the money. Before giving the money, PW-6 counted the same and this was noticed by the accused. Thereafter, both the deceased and accused requested PW-6 to get a hired cycle from the shop of one Narasimha Moopar and thereafter, both of them went in a cycle and after one hour, the accused alone came back. As far as this evidence is concerned, this Court is inclined to point out that in the cross examination he has deposed that on 21st May, 1999 he told the police, when enquired about the above incident. As far as this evidence is concerned, this Court is inclined to point out that in the cross examination he has deposed that on 21st May, 1999 he told the police, when enquired about the above incident. If that is true, then certainly the Police would have taken steps to arrest the accused. That apart, this witness has clearly admitted that he was kept in police station for two days on suspicion. In this context, we would like to point out that PW-14 has in his evidence deposed that the accused was arrested at 6.30 p.m. on 21.5.1999, quite contrary to the evidence of PW-13 who has deposed that the accused was arrested on 22.5.1999. The further evidence of PW-13 is that on 22.5.1999 at about 1.00 p.m., the accused and Village Administrative Officer appeared before him and the statement of the accused and the accused were handed over to him. The prosecution has no consistent came as to when the accused was arrested, was it on 21st or 22nd or 25th May of 1999. If in that context the evidence of PW-6 is considered, this Court has no option except to reject the said evidence. 8. PW-8 is a resident of Kunjaram Village and is an agricultural coolie. He has deposed that the accused and the deceased went in a cycle and that the accused took the deceased to the sugarcane field. For the reason stated for rejecting the evidence of PW-6, we are inclined to reject this evidence as well. That apart, the statement of this witness was recorded on 25.5.1999 and reached the Court on 4.11.1999. We further point out that Section 161 statement of PWs.6 and 8 were recorded on the same day, that was on 25.5.1999, but, the statement of PW-6 reached the Court on the very next day i.e., 26.5.1999, while the statement of P.W.8 reached the Court only on 4.11.1999. This create very serious doubt in the mind of the Court and we are rather forced to come to the conclusion that the prosecution has not come out with the real truth. 9. PW-1 is the Village Administrative Officer. This create very serious doubt in the mind of the Court and we are rather forced to come to the conclusion that the prosecution has not come out with the real truth. 9. PW-1 is the Village Administrative Officer. He has deposed that on 25.5.1999 when he was in the Panchayat Office at about 12.00 noons, the accused appeared before him and confessed having committed the murder of the deceased at 12.45 p.m. on 19.9.1999 and thereafter he reduced the statement into writing and obtained his left thumb impression. Thereafter he took the accused to the Police Station and the statement of the accused and the accused were handed over to the Sub Inspector of Police. We have already pointed out that while PW-1 would claim that the accused was arrested on 25.5.1999, PW-13 would claim that the accused was arrested 22.5.1999 and PW-14 would claim that the arrest was on 21.5.1999. Furthermore, this Court has to point out that though the statement of the accused given to the Village Administrative Officer after commencement of investigation is admissible in evidence, it is a very weak piece of evidence. But in this case, we are inclined to reject this part of prosecution case a put forward by the Village Administrative Officer, since the prosecution has no consistent case with regard to the date when the accused was arrested. 10. It is claimed that on arrest, the accused gave voluntary confession statement and produced a sum of Rs. 500 in currency and also MO-1 towel. The production of currency by the accused certainly would not clinch the issue. As far as MO-1 towel is concerned, PW-2, wife of the deceased has stated that the towel does not belong to her husband. Hence, the so called Section 27 recovery does not advance the case of the prosecution. 11. Having found all the circumstances relied on by the prosecution have not been either not established or in the form of very weak piece of evidence or does not advance the case of the prosecution, this Court has no hesitation to hold that the prosecution has not proved the case beyond all reasonable doubt. 12. In the result, the criminal appeal is allowed. The conviction and sentence, imposed on the appellant/accused by the learned Principal Sessions Judge, Villupuram by her judgment dated 13.10.2000 in S.C.No. 82 of 2000 are hereby set aside. 12. In the result, the criminal appeal is allowed. The conviction and sentence, imposed on the appellant/accused by the learned Principal Sessions Judge, Villupuram by her judgment dated 13.10.2000 in S.C.No. 82 of 2000 are hereby set aside. The appellant/accused is acquitted of all the charges framed against him. The appellant/accused shall be set at liberty forthwith, if he is not required in connection with some other cases. The fine amount, if any, paid by the appellant/accused shall be refunded to him.