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2003 DIGILAW 232 (MAD)

Kaipillai @ Kannian @ Another v. State

2003-02-18

K.GNANAPRAKASAM, M.KARPAGAVINAYAGAM

body2003
Judgment :- M.Karpagavinayagam, J Kaipillai @ Kannian and Rajendran, accused 1 and 2, were convicted for the offence under Section 302 I.P.C and sentenced to undergo life imprisonment by the trial Court. Challenging the same, this appeal has been filed. 2. The case of the prosecution in brief is as follows: (a) There was a long standing enmity between the deceased Veeraiyan's family and the family of the accused. The first accused, Kaipillai, is the younger brother and the second accused, Rajendran, is the elder brother. P.W.1, Anbalagan, is the son of the deceased. P.W.2, Thulasiammal, is the wife of the deceased. P.W.3, Thayumanavaswamy is the elder brother of the deceased. Both the families were residing in Kothur village. The deceased family was residing in the western side and the accused family was residing in eastern side. (b) About 5 or 6 years back, the accused family requested the deceased to sell the vacant land belonged to him to the accused. But, the deceased refused to sell the same. Due to this, there was misunderstanding between these two families. (c) About 4 years prior to the occurrence, both the accused came to the house of the deceased in a drunken mood and scolded and beat the deceased. Therefore, a case was filed against both the accused, and in that case, the accused paid fine before the learned Judicial Magistrate, Thiruvarur. (d) 6 months prior to the date of occurrence, accused 1 gave a complaint to the Kudavasal Police Station against Deenadayalan, younger son of the deceased, stating that he misbehaved with the wife of A-1. However, the police dropped the case as mistake of fact. (e) The fateful occurrence took place on 10.4.1997. At about 10.00 a.m., both the accused came to the house of the deceased and quarrelled with the deceased. P.W.3 Thayumanaswamy, brother of the deceased, took Deenadayalan, younger son of the deceased, to Kudavasal Police Station in order to give complaint about this incident. (f) The deceased, P.W.1 and P.W.2 were staying in the house. The daughters of Thulasiammal were also there. (g) P.W.3 and Deenadayalan did not return home even after 6.00 p.m. Apprehending danger to the life of Deenadayalan, the deceased left the house alone and went towards Perumpannaiyur Bus stand to verify as to whether P.W.3 and Deenadayalan came back from the Police station. The daughters of Thulasiammal were also there. (g) P.W.3 and Deenadayalan did not return home even after 6.00 p.m. Apprehending danger to the life of Deenadayalan, the deceased left the house alone and went towards Perumpannaiyur Bus stand to verify as to whether P.W.3 and Deenadayalan came back from the Police station. (h) P.W.1 Anbalagan, the elder son of the deceased and P.W.2 Thulasiammal, the wife of the deceased, thinking that the deceased would be attacked by the accused, followed the deceased even without the knowledge of the deceased. (i) When the deceased reached the first canal at Thangachiammal Road, both the accused, who hid themselves inside the canal, suddenly appeared in the scene with aruval and started attacking the deceased. The deceased fell down. Both the accused gave indiscriminate cut on his face, neck and shoulder. (j) The deceased also threatened P.Ws.1 and 2 with dire consequences, if they complained to police. Then, both of them ran away with weapons. P.Ws.1 and 2 came near the deceased and found him dead. They cried aloud. On hearing the sound, P.W.4 Rajendran, Village Assistant, came to the scene of occurrence. (k) Then, after getting information from P.Ws.1 and 2, P.W.4 went to P.W.5 Village Administrative Officer and complained to him about the death of Veeraiyan. Immediately, P.W.5 came to the scene of occurrence at 7.45 p.m. and obtained Ex.P.1 statement from P.W.1. (l) Ex.P.1 complaint was sent by P.W.5 at about 8.30 p.m., after making endorsement, to the Kudavasal Police Station through P.W.4. P.W.4 handed over Ex.P.1 to P.W.7 Head Constable at 10.00 p.m. P.W.7 registered a case for the offence under Section 302 I.P.C. and prepared Ex.P.7 F.I.R. Then, P.W.7 sent these documents to both the Court and the Superior Officers. (m) P.W.9 Circle Inspector of Police, Kudavasal Police Station, on receipt of the copy of F.I.R. and Ex.P.7, went to the scene of occurrence on 10.4.1997 at 12.00 midnight and prepared Ex.P.2 observation mahazar and Ex.P.8 rough sketch. He also conducted inquest on the body of the deceased on 11.4.1997 between 1.00 a.m. and 4.00 a.m. and examined P.Ws.1 to 3 and recorded their statements. Ex.P.9 is the inquest report. He recovered blood stained earth and sample earth from the scene of occurrence. Then, he sent the dead body for post-mortem to Doctor. He also conducted inquest on the body of the deceased on 11.4.1997 between 1.00 a.m. and 4.00 a.m. and examined P.Ws.1 to 3 and recorded their statements. Ex.P.9 is the inquest report. He recovered blood stained earth and sample earth from the scene of occurrence. Then, he sent the dead body for post-mortem to Doctor. (n) On 11.4.1997 at 3.00 p.m., P.W.6 Doctor commenced post-mortem and he found as many as seven cut injuries on the body of the deceased and opined that the deceased would appear to have died of shock and haemorrhage due to injury to carotid arteries internal jugular vein and vagus nerve 20 to 22 hours prior to autopsy. Ex.P.6 is the post-mortem certificate. (o) After post-mortem, P.W.9 Inspector of Police recovered blood stained clothes from the deceased and sent the material objects for chemical examination. (p) On 15.4.1997, P.W.9 arrested both the accused at Vazhkai village in presence of P.W.5. On confession of A-1, M.O.1 Aruval was recovered. On 29.7.1998, P.W.10 Santhanam, successor Inspector of Police, took up the case for further investigation. On 18.8.1998, P.W.11 Inspector of Police, Kudavasal Police Station took up further investigation and recorded the statement of witnesses. After completing investigation, he filed the charge sheet against both the accused for the offence under Section 302 I.P.C. 3. During the course of trial, the prosecution has examined P.Ws.1 to 11, filed Exs.P.1 to P.13 and marked M.Os.1 to 5. 4. When the accused were questioned under Section 313 Cr.P.C., they simply denied their complicity in the crime. 5. The trial Court, on an appraisal of the evidence available on record, concluded that the prosecution has established its case beyond reasonable doubt and convicted the accused and sentenced them to undergo life imprisonment. Hence this appeal. 6. Pointing out various infirmities in the evidence of P.Ws.1 and 2 coupled with the evidence of P.W.9 investigating officer, Mr.Ganesh Rajan, learned counsel appearing for the appellants would contend that these infirmities would go to the root of the case, which makes the evidence of P.Ws.1 and 2, the eye witnesses, unreliable, and therefore, the accused are liable to be acquitted. 7. In reply to the above said statement, Additional Public Prosecutor, in justification of the reasonings given in the trial court's judgment for conviction, would contend that the conviction is legal and as such the appeal is liable to be dismissed. 8. 7. In reply to the above said statement, Additional Public Prosecutor, in justification of the reasonings given in the trial court's judgment for conviction, would contend that the conviction is legal and as such the appeal is liable to be dismissed. 8. We have considered the rival contentions urged by learned counsel on either side and gone through the records. 9. On a careful scrutiny of the materials on record, we are unable to place any reliance on the evidence of P.Ws.1 and 2, the eye witnesses. 10. According to P.W.1, there was misunderstanding between the family of the accused and the family of the deceased for a long number of years. Often, the accused used to come to the house of the deceased in a drunken mood and threaten them with weapons. It is stated by P.W.1 that on the date of occurrence, i.e. on 10.4.1997 at about 10.00 a.m., both the accused came to the house of the deceased and quarrelled with the deceased. On noticing this, P.W.3 advised Deenadayalan, the son of the deceased, that a complaint could be given in Police Station against the accused. Accordingly, they went to the Police Station and all others, namely deceased, P.Ws.1 and 2 and the daughters of the deceased were staying in the house. P.W.1 would state that he did not accompany them to the Police station, since he wanted to be there in the house itself for protecting others. 11. Even after 6.00 p.m., Deenadayalan did not return home. Therefore, the deceased left the house alone and was proceeding towards bus stand to see as to whether Deenadayalan has come back from the Police Station. If P.W.1 is very much interested in the safety of the deceased, P.W.1 would not have allowed the deceased to go alone. On the other hand, he would have gone, verified and come back. If P.W.1 followed the deceased without the knowledge of the deceased, he would not have allowed P.W.2 the mother aged about 55 years to come along with him, leaving the daughters alone in the house. Therefore, to say that P.Ws.1 and 2 followed the deceased covering a distance of about 90 metres without the knowledge of the deceased, is so artificial, especially when the young sisters of P.W.1 are staying in the house lonely. Therefore, to say that P.Ws.1 and 2 followed the deceased covering a distance of about 90 metres without the knowledge of the deceased, is so artificial, especially when the young sisters of P.W.1 are staying in the house lonely. As indicated above, the house of the accused is situated nearby in the eastern side of the house of the deceased. 12. It is the case of P.W.1 that both P.W.3 and Deenadayalan went to Kudavasal Police Station for giving complaint against the accused. But, there is no material to show that any such complaint was given to the Police station on that day by Deenadayalan. Admittedly, Deenadayalan has not been examined. P.W.3 would state that he waited up to 4.00 p.m. in the Police Station along with Deenadayalan to give complaint and, since P.W.7 Head Constable had asked them to wait till the Sub-Inspector comes, he left the Police Station leaving Deenadayalan there itself and came back to village. When P.W.3 was cross-examined, he admitted that he did not know as to whether Deenadayalan had given any complaint to the Police after the arrival of the Sub-Inspector of Police. Even when P.W.7, Head Constable, was examined, nothing has been elicited from him by the prosecution that on that day P.W.3 and Deenadayalan came to the Police Station and waited for arrival of the Sub-Inspector of Police to give complaint against the accused. 13. Furthermore, the fact that P.W.3 accompanied Deenadayalan to Kudavasal Police Station to give complaint has not been mentioned in Ex.P.1. These facts would make it clear that there is a doubt as to whether the deceased would have gone there to verify as to whether Deenadayalan has come back from Police Station and in order to ensure that no danger happened to the deceased, P.Ws.1 and 2 accompanied the deceased without his knowledge. To put it briefly, in the absence of any material to show that Deenadayalan went to the Police Station for giving complaint against the accused on that day morning, it is difficult to believe that the deceased and P.Ws.1 and 2 had gone to the scene of occurrence. 14. That apart, the contents of the complaint are not in consonance with the testimony tendered by P.Ws.1 and 2. 14. That apart, the contents of the complaint are not in consonance with the testimony tendered by P.Ws.1 and 2. According to Ex.P.1, when the deceased was approaching the first canal, both the accused persons came in opposite direction and after nearing the deceased, they gave indiscriminate cuts on the deceased. But, both P.Ws.1 and 2, in their evidence, would state that the accused persons concealed themselves beneath the canal and when the deceased reached the said canal, the accused suddenly appeared before the deceased, restrained him from proceeding further and attacked him. 15. Not only that. There is also difference between the evidence of P.Ws.1 and 2 with reference to the words uttered by the accused, while they escaped from the scene of occurrence. According to P.W.2, P.Ws.1 and 2 cried aloud on seeing the deceased being attacked by the accused and when tried to prevent further attack, the second accused came near to P.W.2 and attempted to attack her, and both P.Ws.1 and 2, on getting afraid, ran away. On the other hand, P.W.1 would state that after the deceased was attacked, both the accused threatened P.Ws.1 and 2 that if they give any complaint to the Police, they also would be murdered, and thereafter both of them ran away from the scene of occurrence with aruvals carrying in their hands. 16. Yet another significant difference that we can notice is that according to P.W.1, both the accused, after attacking the deceased and threatening P.Ws.1 and 2, took their heels with weapons, which they were carrying in their hands. But, P.W.2 would strangely state that one accused dropped aruval there itself and other accused ran away with another aruval. According to P.W.1, M.O.1 Aruval, which was recovered from the first accused, was identified by him after six days from the date of occurrence. According to P.W.2, M.O.1 Aruval was identified by her stating that the said weapon was the aruval, which was dropped by one of the accused in the field. 17. One more doubtful circumstance is the arrest of the accused and the recovery of weapon. According to P.W.9, only one aruval was recovered from A-1. According to P.W.9, both the accused were arrested at Vazhkai Village at 12.00 noon and M.O.1 was recovered at Perumpannaiyur village. 17. One more doubtful circumstance is the arrest of the accused and the recovery of weapon. According to P.W.9, only one aruval was recovered from A-1. According to P.W.9, both the accused were arrested at Vazhkai Village at 12.00 noon and M.O.1 was recovered at Perumpannaiyur village. But, P.W.5 would state that the weapon was recovered from Nedunjeri village at about 12.45 p.m. According to P.W.9, the accused were arrested in the presence of P.W.5. On the contrary, P.W.5 would state that he was not present at the time of arrest, but only after the arrest was made, he was called and asked to sign in the confession statement. 18. It is true that M.O.1 was recovered and the same was sent for chemical examination. The said report would show that blood was detected in M.O.1. But, Ex.P.13 report would show that it is disintegrated. Therefore, in the chemical examination, the expert was not able to find as to whether there is human blood or not. Under those circumstances, the evidence relating to the recovery also pales into insignificance. 19.In view of the above infirmities, we are unable to hold that the prosecution had established its case against the accused beyond reasonable doubt. Consequently, the accused are entitled to be given "the benefit of doubt". 20. In the result, The appeal is allowed. The conviction and sentence imposed upon the appellants/accused by the trial Court are set aside. They are acquitted of the charge. The appellants/accused are directed to be set at liberty forthwith, unless they are required in connection with any other case.