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2003 DIGILAW 623 (MAD)

Velanganni @ Ponnudurai @ Durai Chettiar v. State

2003-04-08

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2003
Judgment :- M.Karpagavinayagam, J. The accused Velanganni @ Ponnudurai @ Durai Chettiar was convicted for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment for having caused the death of one Madhan at his house on 07.03.1998 at about 9.15 p.m. Challenging the same, this appeal has been filed. 2. The facts which led to the conviction are as follows:- (a) P.W.2 Neelavathi has got a daughter Kala PW.3 and a son through her first husband, one Kothandapani. After the death of the said Kothandapani, the accused Velanganni married P.W.2. They were originally residing at Ariyur at Pondicherry for some time and thereafter, they shifted their residence at Hosur in Tamil Nadu. They lived in Hosur for about seven years. During that period, at the instance of his mother, the accused married one Latha. In the meantime, P.W.3 Kala, the daughter of P.W.2, attained puberty. The accused wanted to marry her also. But this was resisted by both P.Ws.2 and 3. During the said period, P.W.3 fell in love with Madhan, the deceased. Since the accused was pestering P.W.3 to marry him, both P.Ws.2 and 3 left Hosur and settled at Pangoor, Pondicherry. (b) In 1997, the marriage between P.W.3 and the deceased Madhan was held. Thereafter, the deceased and P.Ws.2 and 3 were living together at Pangoor. In the meantime, the accused also left Hosur and got employment at Thirubuvanai, situate near Pangoor and joined P.Ws.2 and 3 and started to reside along with them under a same roof. (c) On 07.03.1998 at about 9.00 p.m., P.Ws. 2 and 3 were chatting with the deceased Madhan. On noticing that P.W.3 and deceased Madhan were in a happy mood, the accused, who came to the house, got annoyed. Due to this, there was a scuffle between the deceased Madhan and the accused. P.W.2 tried to separate them. But, the accused pushed her down and took out a knife from the thatched roof and stabbed the deceased on his neck and chest, with the result, he died on the spot. Then, P.Ws.2 and 3 cried aloud. The accused ran away from the scene of occurrence. The incident was witnessed by P.W.1 Sekar, who was residing in the same street. (d) On 07.03.1998, at about 10.15 p.m., P.W.1 went to the Police Station and gave a complaint to P.W.9 Venkatasamy, the Sub Inspector of Police. Ex.P.1 is the complaint. Then, P.Ws.2 and 3 cried aloud. The accused ran away from the scene of occurrence. The incident was witnessed by P.W.1 Sekar, who was residing in the same street. (d) On 07.03.1998, at about 10.15 p.m., P.W.1 went to the Police Station and gave a complaint to P.W.9 Venkatasamy, the Sub Inspector of Police. Ex.P.1 is the complaint. Ex.P.12 is the First Information Report. (e) P.W.10, Ramachandran, the Inspector of Police, on receipt of the message, went to the scene of occurrence at about 10.45 p.m. He prepared observation mahazar Ex.P.3 and, two rough sketches Exs.P.23 and P.24. On 08.03.1998 at about 1.30 midnight, he seized blood stained earth M.O.2 and sample earth M.O.3 from the scene of occurrence. Thereafter, the body of the deceased was sent to hospital. (f) In the meantime, P.W.10 received the information about the availability of the accused at burial ground at Pangoor. So, he went to the burial ground and arrested the accused on 08.03.1998 at 03.45 a.m. In pursuance of the confession made by the accused, knife M.O.1 was recovered from him. Then, P.W.10 examined the witnesses. (g) Thereafter, he went to the Government Hospital and conducted inquest over the body of the deceased on 08.03.1998 between 10.30 a.m. and 12.30 p.m. On the same day, he gave a requisition to the Judicial First Class Magistrate No.I to record the statements of P.Ws.2 and 3 under Section 164 Cr.P.C. (h) On 10.03.1998, P.W.10 gave a requisition to P.W.7 Dr.Balaraman to conduct post mortem on the body of the deceased. P.W.7 conducted post mortem and issued post mortem certificate Ex.P.6 and opined that the deceased would appear to have died of shock and hemorrhage due to injuries sustained. (i) On 12.03.1998, the Judicial First Class Magistrate, Pondicherry recorded the statements of P.Ws.2 and 3 under Section 164 Cr.P.C. Then, P.W.10 made arrangement for sending the material objects for chemical examination. He continued the investigation by examining the other witnesses. After obtaining the final opinion on post mortem report Ex.P.8 and after completing the investigation, he filed the charge sheet against the accused for the offence under Section 302 I.P.C. (j) During the course of trial, on the side of prosecution, P.Ws.1 to 10 were examined, Exs.P1 to P.27 were filed and M.Os.1 to 8 were marked. After obtaining the final opinion on post mortem report Ex.P.8 and after completing the investigation, he filed the charge sheet against the accused for the offence under Section 302 I.P.C. (j) During the course of trial, on the side of prosecution, P.Ws.1 to 10 were examined, Exs.P1 to P.27 were filed and M.Os.1 to 8 were marked. (k) When the accused was questioned under Section 313 Cr.P.C., he stated that when he went to his house at Pangoor, he noticed that there was a quarrel between his wife P.W.2 and her daughter Kala P.W.3 on the one side and the deceased Madhan on the other side and when he intervened, P.Ws.2 and 3 attacked him with a firewood stick and that he did not have any complicity in the crime in question. (l) The trial Court, on perusal of evidence available on record, found the accused guilty of the offence under Section 302 I.P.C. and convicted him thereunder. Aggrieved by the said conviction, this appeal has been filed. 3. Assailing the judgment impugned, Mr. Sankarasubbu, the learned counsel appearing for the appellant/accused, while pointing out various infirmities in the evidence projected by the prosecution, contended that the case of the prosecution has not been established beyond reasonable doubt and as such, the accused is entitled to be acquitted. 4. Mr. T.Murugesan, learned Public Prosecutor, Pondicherry, while replying to the submission made by the learned counsel for the appellant, contended that the evidence of P.Ws.1 to 3, the eye witnesses are clearly corroborated by the medical evidence adduced by P.W.7, the Doctor and the arrest and recovery are also proved by the evidence of P.Ws.8 and 10 and as such, the infirmities pointed out by the learned counsel for the appellant, which are trivial in nature, would not affect the case of the prosecution and as such, the conviction and sentence imposed upon the accused by the trial Court are liable to be confirmed. 5. Both the counsel would cite number of authorities to substantiate their respective contentions. 6. We have given our careful consideration to the rival contentions urged by the learned counsel on either side and also analysed the materials available on record. 7. On a perusal of the entire records, we are of the view that the evidence of P.Ws.1 to 3 the eye witnesses cannot be accepted, as their evidence would suffer from various infirmities. 8. 7. On a perusal of the entire records, we are of the view that the evidence of P.Ws.1 to 3 the eye witnesses cannot be accepted, as their evidence would suffer from various infirmities. 8. There is no dispute in the fact that P.W.2 is the wife of the accused and P.W.3 is her daughter through one Kothandapani, her first husband. 9. It is the case of the prosecution that the accused wanted to marry P.W.3, the daughter of P.W.2. Since this was not liked by P.Ws.2 and 3, they left the accused and settled at Pangoor. It is the further case of the prosecution that during that period, P.W.3 got married to the deceased Madhan and from then onwards, they were living together at Pangoor. 10. The accused, who was originally residing at Hosur, left Hosur and got employment at Thirubuvanai and joined P.Ws.2 and 3 and started to reside along with P.Ws.2 and 3 and the deceased Madhan at Pangoor. 11. It is the specific admission by P.W.3 that the accused wanted to marry her only before the marriage, which was held between her and the deceased. 12. The motive projected by the prosecution is that the accused, out of jealousy, killed the deceased, the husband of P.W.3. This cannot be true, because even according to the prosecution, the house in which all were residing was leased out to the accused and the accused only allowed them to live together under the same roof. 13. According to P.Ws.2 and 3, the marriage between P.W.3 and the deceased was held one year prior to the date of occurrence. From this, it is clear that they were residing together as one family under the same roof for the past one year. In such a situation, it cannot be contended that the accused had jealousy against the deceased. 14. P.W.1, the first informant is one of the eye witnesses. On a perusal of Ex.P1 and his evidence in chief and cross, it is clear that P.W.1 has not given consistent version with reference to the occurrence. In Ex.P.1, P.W.1 would state that he was taking food in his house and he heard the sound from the house of the accused and then, he went to the spot and saw the occurrence. In Ex.P.1, P.W.1 would state that he was taking food in his house and he heard the sound from the house of the accused and then, he went to the spot and saw the occurrence. On the contrary, P.W.1 would state in the cross-examination that he was walking along the road at about 9.15 p.m. on 07.03.1998 and at that time, he heard the sound from the house of the accused and went inside the house and saw the occurrence. 15. According to PW.1, he was residing just 15 feet away from the house of the accused, where the occurrence had taken place. Admittedly, in Ex.P.3 observation mahazar, the house of P.W.1 has not been shown and there is no reference about his house. Though P.W.1 both in his evidence and in Ex.P1 complaint stated that he saw the accused stabbing the deceased, he admitted in the cross-examination that he did not see the actual stabbing incident. He would further state in his cross-examination that he was not able to see the stabbing incident, since somebody caught hold of him. He also admitted that the accused also sustained injuries. Admittedly, this factor has not been given by P.W.1 in Ex.P1 or in his chief-examination. 16. On the other hand, PW.2 and P.W.3 did not speak about the injuries sustained by the accused. However, they simply stated that after the accused entered into the house, there was a quarrel between the accused and the deceased Madhan and consequently, there was a scuffle and then the accused took out the knife, which was kept in the roof and stabbed on the deceased. There are no details as to how the occurrence had started and what was the immediate cause for the accused to stab on the deceased. 17. There is no dispute in the fact that the accused sustained injuries only during the course of occurrence as admitted by P.W.1. P.W.10, Inspector of Police also while arresting the accused found injuries on him and therefore, the accused was sent to the Doctor P.W.6, who gave treatment for the injuries sustained by the accused and issued certificate Ex.P.5. According to P.W.6, out of five injuries, one of the injuries found on the accused is cut injury and one injury on the face was found to be grievous. According to P.W.6, out of five injuries, one of the injuries found on the accused is cut injury and one injury on the face was found to be grievous. When it is the case of the prosecution that the accused sustained grievous injury, that too cut injury on the vital part of the body, the same has to be explained by the prosecution. On the other hand, P.W.2 and P.W.3 did not choose to refer to the injuries sustained by the accused at all. 18. Furthermore, the evidence relating to the marriage between P.W.3 and the deceased itself is doubtful. When P.W.3 was examined in the Court, she was aged about 19 years. According to P.W.3, one year back, her marriage with the deceased was held. But in the cross-examination, she would state that at the age of 13, she married the deceased. P.W.10, the Inspector of Police also would admit in the cross-examination that P.W.3 married the deceased only at the age of 13 years. 19. It is the evidence of P.W.2, the mother of P.W.3 that the marriage between the deceased and P.W.3 was held at Thirumandhi Temple, but she did not choose to attend the marriage. There is no reason as to why she did not attend the marriage. These things would make it clear that the evidence relating to the marriage of P.W.3 and the deceased is quite doubtful. 20. Furthermore, after the death of the deceased, P.W.2 and P.W.3 did not prefer to go to Police Station to give complaint. Admittedly, they were not examined during the course of inquest. 21. As admitted by P.W.8, the accused was caught on the spot itself on the very same night by the Panchayatdars. Both P.W.1 and P.W.8 would admit that in regard to any issue in the village, the panchayatdars alone would decide the further course of action. In the context of the admission made by P.W.1 and P.W.8, it is clear that the village panchayatdars only caught the accused on the spot, on the very same day, and handed over him to the police. 22. When there is no clear material to show that P.W.1 is the neighbour of the accused, it is not known as to why P.W.1 had chosen to give a complaint against the accused with reference to the occurrence took place inside the house, where P.W.2 and P.W.3 were residing. 23. 22. When there is no clear material to show that P.W.1 is the neighbour of the accused, it is not known as to why P.W.1 had chosen to give a complaint against the accused with reference to the occurrence took place inside the house, where P.W.2 and P.W.3 were residing. 23. As a matter of fact, P.W.2 and P.W.3 were not available for examination during the course of inquest and they did not claim the body of the deceased. On the other hand, it is clear from the evidence of P.W.10 that he sent a telegram to Karnataka, to the relatives of the deceased. This shows that after the occurrence was over, P.W.2 and P.W.3 could not have been available either to the Panchayatdars or to the police to get complaint from them. Probably, this was the reason why P.W.10 was very particular about the recording of 164 statements from them by the Magistrate. 24. It is noticed that even though P.W.2 and P.W.3 had given statements under Section 164 to the Magistrate, the prosecution has not chosen to mark those documents before the Court. If all these factors are taken into consideration cumulatively, it cannot be disputed that the prosecution has not come with clean hands by presenting the true version. 25. As indicated above, P.W.2 and P.W.3 did not state about the immediate cause for the occurrence. They have also not stated as to how the accused sustained cut injury. When the accused was questioned under section 313 Cr.P.C., he stated that P.W.2 and P.W.3 attacked him with the firewood sticks when there was quarrel between the deceased Madhan and P.W.3. 26. Under these circumstances, we are unable to believe these eyewitnesses. In our view, they have not given consistent version with reference to the occurrence in which both the deceased and the accused sustained injuries. 27. The evidence regarding the arrest and recovery, we have got the evidence of P.W.8 and P.W.10. But, as noted above, P.W.8 would state in the cross-examination that he was caught by the local panchayatdars near his house and therefore, the evidence given by P.W.10 relating to the arrest and recovery of the weapon cannot be relied upon. 28. Consequently, it has to be held that the materials available on record would not be sufficient to hold the accused guilty of the offence under Section 302 I.P.C. 29. 28. Consequently, it has to be held that the materials available on record would not be sufficient to hold the accused guilty of the offence under Section 302 I.P.C. 29. Hence, we are of the considered opinion that the accused is entitled to be given benefit of doubt and accordingly, the appeal is allowed, setting aside the conviction and sentence imposed on the appellant/accused. The accused is acquitted of the charge. He is directed to be set at liberty forthwith, unless he is required in connection with any other case. The fine amount, if paid by the accused, shall be refunded.