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2003 DIGILAW 936 (MAD)

Govindasamy & Others v. State, rep. by Inspector of Police

2003-06-30

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

body2003
Judgment :- A.S. Venkatachalamoorthy, J. Learned II Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri, tried the appellants herein in Sessions Case No.152 of 1999 for charges under Sections 302 read with 34 IPC and 506 (II) IPC. for causing the death of one Chinnasamy at about 7.30 P.M. on 24.10.1998 in Kettesampatty Village. The Court found them guilty under Section-302 read with 34 IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.1,000/-. For the offence under Section 506 (II) IPC., the court imposed rigorous imprisonment for three years and a fine of Rs.1,000/-. Being aggrieved by the said Judgment, the appellants have preferred the above appeal. 2. PW-1 is the son of the deceased. Accused-2 and 3 are related to the first accused as cousins. There was a land dispute between the first accused and the deceased. In this regard, the deceased gave a police complaint, but however, the police refused to intervene since they took the view that the dispute is one of a civil nature. Thereafter, a village panchayat was convened in this regard on 22.10.1998. Nothing happened in the said panchayat since, on that day, one of the panchayatdars failed to turn up. On 24.10.1998, when the panchayat met, 1st accused refused to attend the panchayat saying that unless the panchayat is convened in his place, he would not participate. On the fateful day, PW-1 and the deceased went to the house of Sarasu viz., the sister of PW-1 at Sithyampatti. That was at about 4.30 P.M. Thereafter, PW-1 and the deceased returned to the village at about 6 P.M. and they were proceeding from Sithyampatti to Nadukottai. The distance between these two places is about 4 Kms. They came by walk and when they reached near the land of one Marimuthu in Kettesampatti, it was about 7.30 P.M. The deceased was going in front followed by PW-1. The accused then suddenly appeared armed with weapons. A-1 saying ",j;njhL xHpe;J nghlh" stabbed the deceased with knife on the left neck and mouth while A-2 with suri knife stabbed the deceased on the forehead and cheek, and A-3 attacked the deceased with a stone on the chest. PW-1 was able to see this with the help of a torch light which he was having at that time. A-1 saying ",j;njhL xHpe;J nghlh" stabbed the deceased with knife on the left neck and mouth while A-2 with suri knife stabbed the deceased on the forehead and cheek, and A-3 attacked the deceased with a stone on the chest. PW-1 was able to see this with the help of a torch light which he was having at that time. When PW.1 attempted to go near the accused, he was threatened by the 1st accused saying that he would also have the same fate if he comes near. Not only PW-1 but also PW-4, who also belongs to Kettesampatti Village and who happened to come there hearing the noise, witnessed the occurrence. The deceased who received injuries fell down and died on the spot. Thereafter, A-1 and A-2 ran away from the scene carrying the weapons with them so also A-3. Residents of Kettesampatti viz., Chinnamuthu, Pachiappan, Govindan and others then came there and saw the deceased lying dead. Thereafter, PW-1 proceeded to his house to inform the relatives and villagers. In fact, PW-1 fainted for a couple of hours after seeing the gruesome attack on the deceased by the accused. PW-2, the Village Administrative Officer of Thumbala Alli was informed at about 3.30 A.M. by PW-1. PW-2 reduced the statement of PW-1 to writing and the complaint is Ex.P-1 in which PW-1 signed. Thereafter, both PWs-1 and 2 proceeded to Karimangalam Police Station. At about 6 A.M., PWs-1 and 2 appeared before PW-13, the Sub Inspector of Police and gave a complaint. On the basis of the said complaint, he registered Cr. No.1237/98 under Section 302 IPC and prepared the Express F.I.R. Ex.P-18. He took steps to send the same to the Court of Judicial Magistrate and copies to his superiors. PW-15 is the Inspector of Police of Kaveripattinam Police Station and he was also in charge of Karimangalam Police Station. At about 8 A.M., he received the First Information Report, proceeded to the scene of occurrence and reached there at about 9.30 A.M. After inspecting the scene of occurrence, he prepared observation mahazar Ex.P-3 and Sketch Ex.P-20 in the presence of witnesses. He held inquest over the body of the deceased between 11.30 AM. and 3.30 PM. Ex.P-21 is the inquest report. During inquest, he examined Raman, Krishnan, Govindasamy, Venkattan and others and recorded their statements. He held inquest over the body of the deceased between 11.30 AM. and 3.30 PM. Ex.P-21 is the inquest report. During inquest, he examined Raman, Krishnan, Govindasamy, Venkattan and others and recorded their statements. Then, he took steps to send the body with a requisition to the Government Hospital for the purpose of conducting post mortem. PW-14 is the Doctor attached to Dharmapuri Government Head Quarters Hospital. Pursuant to the requisition Ex.P-16 from the Inspector of Police, he commenced the post mortem at 2 P.M. on 26.10.1998. Ex.P-19 is the Post Mortem Certificate. In the said Certificate, the Doctor had made the following notings:- “ A moderately built male body lying on its back, arms by the side. Eyes and mouth closed with loss of many teeth (only 6 teeth left) without any discharge from mouth, nostrils anus and urethra. External Injuries: 1. An incised wound of size 2c x 2c x bone deep near the left eye. 2. A lacerated injury of size 2 cm x 2 cm. x bone deep just below wound (1). 3.A lacerated injury of size 2 cm. x 1 cm. x bone deep over left ear. 4. An incised wound of size 8 cm. x 3 cm. x bone deep on left neck. 5. An incised wound of size 3 cm. x 2 cm. x 1 cm. extending from right ear to the right upper lip. 6. An incised wound 3 cm. x ½ cm. x bone deep below right eye. 7. A lacerated injury 3 cm. x ½ cm. x bone deep on right temple. 8. A lacerated injury 3 cm. x ½ cm. x bone deep below right eye brow. 9. A lacerated injury 3 cm. x ½ cm. x bone deep right forehead. 10. A lacerated injury of size 1 ½ cm. x ½ cm. x bone deep left fore head. 11. An incised wound of size 10 cm. x 2 cm. x bone deep over the right lower side of the lower jaw and the jaw is fractured. 12. A contusion of size 10 cm. x 3 cm. on the left chest. On Internal Examination: Skull: Skull fractured on the frontal region. Brain liquified. Base of skull in tact. Hyoid : Intact. Thorax: Thoracic cage intact. Lungs pale, Heart pale. Chambers empty. Abdomen: Liver-Pale, Kidneys:pale, Stomach – (did not contain food particles) Intestines – Distended with gas. 12. A contusion of size 10 cm. x 3 cm. on the left chest. On Internal Examination: Skull: Skull fractured on the frontal region. Brain liquified. Base of skull in tact. Hyoid : Intact. Thorax: Thoracic cage intact. Lungs pale, Heart pale. Chambers empty. Abdomen: Liver-Pale, Kidneys:pale, Stomach – (did not contain food particles) Intestines – Distended with gas. Bladder empty.” According to the Doctor, the deceased would appear to have died of shock and haemorrhage about 36 to 48 hours prior to autopsy. PW-15, the Inspector of Police at about 5.45 P.M. on 25.10.1998 seized bloodstained earth MO-1, ordinary earth MO-2, stone MO-3, fire-box MO-4, notice MO-5, coins MO-6 series and butt of beedi MO-7 under Ex.P-2 mahazar. A two wheeler (TVS-50) bearing Registration No.TN-29 B-5190 which was left by the accused at the scene was recovered under Ex.P-5 mahazar in the presence of witnesses. Other witnesses were examined by the Inspector on 25th and 26th October, 1998. On 29.10.1998 at about 11.45 A.M., at the junction of Karimangalam-Periampatti-Pulampatti, A-3 was arrested in the presence of PW-3 and another. He was taken to the police station, where he gave a confession statement and Ex.P-11 is the admissible portion in the said statement. The accused took the police party and witnesses to a place near a road leading from Kettesampatti to Jogipatti and took out a stone from a bush where he had hidden that stone earlier. The said stone is MO-9 and it was recovered under Ex.P-6 mahazar. A-1 and A-2 surrendered before Judicial Magistrate No.1, Dharmapuri on 30.10.1998 and 2.11.1998 respectively. The Inspector of Police took steps to secure police custody of those accused. On 11.11.1998, at about 6 A.M., A-1 gave a confession statement in the presence of PW.3 Selvaraj, Sundaresan and others. The admissible portion in the statement of A-1 is Ex.P-7. Subsequently, at about 9 A.M. A-2 also gave a confession statement again in the presence of witnesses. The admissible portion in it is Ex.P-8. A-1 took the police party and witnesses to a sugarcane field and from the northern corner of that field he produced MO-10 Koduval. A-2 also took the police party and witnesses to his house and from the roof, he took out a knife (MO-11), which he had hidden there earlier. Both the material objects were recovered under mahazars. A-1 took the police party and witnesses to a sugarcane field and from the northern corner of that field he produced MO-10 Koduval. A-2 also took the police party and witnesses to his house and from the roof, he took out a knife (MO-11), which he had hidden there earlier. Both the material objects were recovered under mahazars. The recovered material objects were sent to the court with a requisition to send the same for chemical analysis. While examining PW-1 on 25.10.1998, MO-17 torch light used by him was recovered by the Investigating Officer. The other witnesses including the Doctor who conducted the post mortem were examined and final report was filed by the Inspector. 3. When questioned under Section 313 Cr.P.C., the accused denied having any complicity in the commission of the offence and pleaded total ignorance. 4. PW-14 is the Doctor attached to Dharmapuri Government Head Quarters Hospital, who, pursuant to the requisition Ex.P-16 from the Inspector of Police, conducted post mortem on the body of the deceased on 26.10.1998 and issued Ex.P-19 post mortem certificate. In the said certificate, the Doctor has noted as many as 12 external injuries. On dissection, he found fracture of skull on the frontal region. However, he found base of skull intact. Before Court, he has deposed that the deceased would have died of shock and haemorrhage about 36 to 48 hours prior to autopsy. He also testified that the injury on the neck could have been caused by weapon like MO-11. Similarly, he has testified that the injuries found on the fore head, chest and eye-brow could have been caused by weapon like MO-9 stone. In the earlier part of this Judgment, while referring to the post mortem certificate, we have given a complete description of the various injuries as found by the Doctor. Hence, it is unnecessary to repeat the same over again. The medical evidence available would amply show that the deceased died of shock and haemorhage due to the injuries caused. Hence, there is overwhelming evidence to show that the deceased died only of homicidal violence. 5. Then the question is, is it that these appellants/accused who committed this grave crime and that the prosecution has proved its case beyond all reasonable doubts. 6. The prosecution examined two witnesses viz., PW-1 and PW-4 to speak about the occurrence. Hence, there is overwhelming evidence to show that the deceased died only of homicidal violence. 5. Then the question is, is it that these appellants/accused who committed this grave crime and that the prosecution has proved its case beyond all reasonable doubts. 6. The prosecution examined two witnesses viz., PW-1 and PW-4 to speak about the occurrence. PW-4 has turned hostile and the testimony of PW-1 alone is available for consideration before this Court. In case this Court accepts the testimony of PW-1, then, the conviction and sentence imposed on these accused can be sustained, but if it is in other way, then straight away the appellants/accused have to be acquitted. 7. PW-1 is none else than the son of the deceased. This witness has deposed that there had been enmity between the first accused and his father and a panchayat was convened on 22.10.1998, but however, since one of the panchayatdars was absent, it was adjourned to 24.10.1998. On that day, the accused refused to attend the panchayat saying that unless the panchayat is convened in his place, he would not participate. According to PW-1, thereafter himself and his father went to the house of one Sarasu, who is the sister of PW-1 in the village called Sithiampattti and they were returning to their village at about 6 P.M. At about 7.30 P.M., when they had covered nearly 4 Kms. and reached Kettesampatti, near the land of one Marimuthu, the deceased was attacked by A-1 with a knife on the neck and mouth. A-2 with suri knife attacked the deceased on the fore head and cheek while A-3 attacked the deceased with stone on his chest. This was seen by PW-1 with the help of a torch light. PW-1 has positively deposed before court that A-1 while attacking the deceased, uttered the words ",j;njhL xHpe;J nghlh". Further A-1 threatened PW-1 also. This occurrence was witnessed by PW-4 as well. The further testimony of PW-1 is to the effect that he proceeded to the village and thereafter he went and informed the Village Administrative Officer PW-2. Thereafter, both PWs-1 and 2 went to the police station, reached there at about 6 A.M. and gave complaint. Police arrived at the scene of occurrence at about 9.30 A.M. on 25.10.1998. 8. The further testimony of PW-1 is to the effect that he proceeded to the village and thereafter he went and informed the Village Administrative Officer PW-2. Thereafter, both PWs-1 and 2 went to the police station, reached there at about 6 A.M. and gave complaint. Police arrived at the scene of occurrence at about 9.30 A.M. on 25.10.1998. 8. There being only a solitary evidence to be considered by this Court, the duty of this Court is to see whether the testimony is wholly reliable. If this Court comes to the conclusion that the testimony is partly reliable, then, this Court must seek for corroboration in material particulars. 9. Two aspects to be kept in mind are, PW-1 is none else than the son of the deceased. The other one is, admittedly, there has been enmity between the first accused and the deceased. Accused 2 and 3 are related to the first accused as cousins. According to PW-1, the occurrence took place while himself and the deceased were proceeding from Sithyampatti to Nadukottai and at that time it was 7.30 P.M. According to PW-1, after the occurrence, he was proceeding to his village to inform his relatives and others and on the way, he met Chinnamuthu, Pachiappan, Govindan and others. Of course, here, the testimony of this witness is not clear. A reading of the evidence of PW-1 wold show that Chinnamuthu, Pachiappan and Govindan came to the scene of occurrence immediately after the attack and saw the body of the deceased and only thereafter, PW-1 left for the village. It is relevant to point out that none of these three witnesses has been examined. Of course, these witnesses, not being eye witnesses to the occurrence, would not have deposed about the occurrence, but, they would have at least deposed about the presence of PW-1 at the scene of occurrence. Then, it is claimed that this witness saw the entire occurrence with the help of torch light. We carefully examined Ex.P-1 complaint given by him to PW-2 the Village Administrative Officer, but, there is no mentioning about it in Ex.P-1. That apart, PW-2 the Village Administrative Officer also in cross examination has admitted that PW-1 did not tell him anything in this regard. We carefully examined Ex.P-1 complaint given by him to PW-2 the Village Administrative Officer, but, there is no mentioning about it in Ex.P-1. That apart, PW-2 the Village Administrative Officer also in cross examination has admitted that PW-1 did not tell him anything in this regard. Learned Additional Public Prosecutor of course put forth an argument that A-1 to A-3 being known persons and that only after uttering some words they attacked the deceased, PW-1 would not have had any difficulty in identifying them. The occurrence was on 24.10.1998 at about 7.30 P.M. The new moon day was on 20.10.1998. While a reading of Ex.P-1 would show as if all the three accused uttered some words, the evidence of PW-1 would show that A-1 alone uttered some words while attacking the deceased so also while posing a threat to PW.1. 10. Much argument has been advanced by the learned counsel for the appellants on the dealy in giving police complaint so also the F.I.R. reaching court. Learned counsel contended that the occurrence was at about 7.30 P.M. on 24.10.1998 and PW-2 was approached only at about 3.30 A.M. on the next day. With regard to this, the prosecution would endeavour to explain the delay by saying that PW-1 was unconscious he having witnessed the brutal attack by the accused on his father. To this effect PW-1 also deposed in his evidence. But, we do not find anything about this in the complaint Ex.P-1 given by PW-1 to PW-2. Then, the next stage is, PWs-1 and 2 went to police station and gave complaint at 6 A.M. This complaint reached the Court only at 8.10 P.M., that is, after 14 Hours and 10 minutes. The prosecution would try to explain this delay by saying that the distance between the police station and the court is 12 Kms. and buses are plying once in two hours and hence, it would take 1 ½ hours for a bus to cover this distance in view of the bad road. Complaint was given to the police at 6 A.M. Even assuming next bus was available only at 8 A.M., the FIR should have reached the Magistrate at 9.30 A.M. In fact, we are not prepared to accept the case of the prosecution that for a bus to cover a distance of 12 Kms. on a bad road, it would take 1 ½ hours. on a bad road, it would take 1 ½ hours. Certainly, it will not take more than 30 to 40 minutes. In that event, the FIR should have reached the Magistrate at 8.30 A.M. It is not as if because of some reasons such as lack of police force or deputation of police force for some other urgent work like maintenance of law and order, there was none available to take the FIR to the court of Judicial Magistrate. In this context, we also take note of the fact that PW-1 admitted in his cross examination that police came immediately two hours after the occurrence. 11. We entertain a very serious doubt with reference to the case of the prosecution particularly because of non-examination of the persons who came to the scene of occurrence immediately after the attack, delay in FIR reaching the court of judicial magistrate, and non-mentioning in Ex.P-1 that PW-1 was having torch light with him at the time of occurrence. From the above, we come to the conclusion that the testimony of PW-1 is wholly unreliable. Once we come to such conclusion the fact that certain weapons stained with human blood group as that of the deceased were recovered cannot advance the case of the prosecution. Having rejected the evidence of the sole eye witness in toto, this Court has to necessarily acquit all the accused of all the charges. 12. In the result, the appeal is allowed. The appellants/accused are acquitted of all the charges viz., under Sections-302 read with 34 and 506 (II) IPC. and they shall be set at liberty forthwith unless there are required in connection with any other case. Fine amount paid by the appellants/accused shall be refunded to them.