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2005 DIGILAW 874 (MAD)

M. Kumar & Others v. State

2005-06-17

M.KARPAGAVINAYAGAM, SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (Criminal Appeals preferred against the judgment-dated 26.8.1997, made in S.C.No.29/1996, on the file of the learned Additional Sessions Judge, Pondicherry at Karaikal.) COMMON JUDGMENT M.Karpagavinayagam, J. Accused 1 to 3 in S.C.No.29/1996 on the file of the Additional Sessions Judge, Pondicherry at Karaikal, are the appellants in these two appeals. They have been convicted by the trial court for the offence under Section 302 r/w 149 of the Indian Penal Code, by the judgment dated 26.8.1997. Challenging the same, they have preferred these two Appeals. 2. Though A1 to A9 were initially charge-sheeted and tried, A4 to A9 were acquitted by the trial court. The appellants/A1 to A3 alone have been convicted by the trial court. 3. The brief facts, leading to the conviction of the appellants, are as follows:- "(a) Both the deceased and the accused, belonged to the same village. They were fishermen. There was a dispute between A7 and one Raju. Raju lent some loan to A7 for constructing a house. So, Raju was given the right to occupy the said house, till the repayment of the loan. Even without making repayment of the loan, A7 took steps to evict the said Raju. This was objected to by the said Raju. The said Raju is related to P.W.20, an Ex-M.L.A. Due to the above reason, there were frequent quarrels between the two parties. Ultimately, proceedings were initiated against both parties under Section 107 Cr.P.C. (b) The fateful occurrence took place on 4.12.1987. The deceased Kilavan @ Rethinasamy after finishing his food, came out of the house to wash his hands at about 5.00 p.m. At that time, A1 to A3 came near to the house of the deceased and bodily lifted him and threw him near the house of A1. Then, all the three accused started attacking the deceased with Aruval and 'Suluki'. P.W.2 Lakshmi, a close relative of the deceased, objected to the same. Even then, they attacked the deceased. P.W.1, the nephew of the deceased, who happened to witness the occurrence, also cried. The other accused also came with weapons to the scene of occurrence. Within a few minutes, the accused, seeing the crowd gathered there, ran away, carrying the weapons with them. The deceased was lying in a pool of blood with injuries. (c) P.W.1 went to the police station and gave the complaint Ex.P.31 to P.W.16, the Sub-Inspector of Police. The other accused also came with weapons to the scene of occurrence. Within a few minutes, the accused, seeing the crowd gathered there, ran away, carrying the weapons with them. The deceased was lying in a pool of blood with injuries. (c) P.W.1 went to the police station and gave the complaint Ex.P.31 to P.W.16, the Sub-Inspector of Police. A case was registered under Sections 147, 148, 326 and 324, read with Section 149 I.P.C. against the accused. (d) In the meantime, the villagers took the victim to the police station. Since the victim was in a dangerous condition, P.W.16 sent P.W.15, the Constable to take the victim to hospital and admit him. (e) On 4.12.1987 at about 6.10 p.m., the deceased was admitted and Ex.D1, wound certificate was issued by Dr.Shyamala. At about 7.00 p.m., the deceased died. (f) The matter was informed to P.W.17, the Inspector of Police, by P.W.16, the Sub-Inspector of Police. P.W.17 came to the station and took up investigation and altered the F.I.R. into one under Section 302 I.P.C., on receipt of the death intimation, Ex.P35. (g) On the very same day, P.W.17 went to the scene of occurrence and observed all the formalities by preparing observation mahazar, Ex.P33, rough sketch, etc. The next day morning, he conducted the inquest in which, he examined the eye-witnesses, P.Ws.1 and 2. (h) Then, the material objects were sent for chemical analysis. A1 was arrested on 16.12.1987. A2 was arrested on 17.12.1987. A3 was arrested on 19.12.1987. All the other accused were subsequently arrested. M.O.13, Aruval and M.O.17, Vel type soolam were recovered. (i) Meanwhile, the body was sent for post-mortem. P.W.18, the Doctor, conducted post-mortem and issued post-mortem certificate Ex.P42. The opinion given by the Doctor is as follows:- "The deceased would appear to have died of haemorrhagic shock due to rupture of blood vessels and fractures of bones." (j) P.W.21, thereafter took up further investigation. P.W.19 filed the charge sheet for the offences referred to above. (k) During the course of trial, on the side of the prosecution, P.Ws.1 to 21 were examined; Exs.P1 to P60 were filed and M.Os.1 to 17 were marked. (l) When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. On the defence side, Ex.D1 was marked. (k) During the course of trial, on the side of the prosecution, P.Ws.1 to 21 were examined; Exs.P1 to P60 were filed and M.Os.1 to 17 were marked. (l) When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. On the defence side, Ex.D1 was marked. (m) The trial court, after considering the materials available on record, convicted A1 to A3 and sentenced them to undergo imprisonment for life for the offence under Section 302 r/w 149 I.P.C., and acquitted the other accused. Hence, these appeals by A1 to A3 alone." 4. Mr.V.Parthiban, learned counsel for the Appellants in Crl.A.No.742/1997---A1 and A2 and Mr.A.D.Jagadish Chandran, learned counsel for the appellant in Crl.A.No.747/1997---A3, took us through the entire evidence and contended that the evidence available on record would not be sufficient to connect the accused with the crime and as such, they are liable to be acquitted. 5. On the other hand, Mr.T.Murugesan, learned Public Prosecutor (Pondicherry) appearing for the respondent, in justification of the judgment of conviction, would strenuously submit that the eye-witness, P.W.2 is a reliable witness and her name has been referred to in Ex.P31, the earliest complaint given by P.W.1, and as such, P.W.1 though turned hostile, the evidence of P.W.2 has been corroborated by P.W.1, at least in respect of the assault by A1. Therefore, the evidence of P.W.2, corroborated by the medical evidence, can be relied upon, for confirming the conviction. 6. We have gone through the evidence and carefully considered the rival contentions urged by the learned counsel for the appellants and the learned Public Prosecutor (Pondicherry) for the respondent. 7. According to the prosecution, on 4.12.1987, A1 to A3 came to the house of the deceased, while he was washing his hands outside the house at 5.00 p.m. and lifted his body and took him to the house of A1. Nearer to the house of A1, the deceased was pushed down and thereafter, A1 to A3 started attacking him. P.W.2 tried to prevent the attack. Even then, they continued to attack the victim. P.W.1 immediately rushed to the police station and gave the complaint. The victim who was then alive, was taken to the police station. P.W.16, on noticing the serious condition of the deceased, made arrangement to take him to the hospital through P.W.15, the Constable. P.W.2 tried to prevent the attack. Even then, they continued to attack the victim. P.W.1 immediately rushed to the police station and gave the complaint. The victim who was then alive, was taken to the police station. P.W.16, on noticing the serious condition of the deceased, made arrangement to take him to the hospital through P.W.15, the Constable. In the hospital, after treatment, the victim died at about 7.00 p.m., in spite of treatment. 8. Though, P.W.1, the author of the F.I.R., unfortunately, turned hostile, as a matter of fact, he only gave statement to the police, stating that A1 alone was present at the scene of occurrence and his signature was obtained in Ex.P1., on the same day, in blank paper. Therefore, the prosecution is unable to make use of either P.W.1's complaint or his evidence. However, the evidence of P.W.1 is corroborated by P.W.2 Lakshmi, whose name is found in Ex.P1, and the evidence of P.W.1 supports the case of the prosecution, implicating A1 to A3, stating that they attacked the deceased with weapons, namely, knife, aruval and 'sulukki'. It cannot be disputed that there are materials to show that these weapons had been recovered from A1 to A3, on their confession. 9. It is true that if there is evidence of single witness, there is no difficulty for the court to conclude that the conviction can be on the basis of that evidence alone. But, when the evidence of single witness is not impressive, especially when there is more than one accused involved, even then, it is too difficult for the court to conclude that the prosecution case is true. 10. When we go through the evidence of P.W.2, we are not very much impressed. As a matter of fact, P.W.1 would speak in the chief and cross-examination that when the deceased was about to be attacked, P.W.2 fell down on the body of the deceased and prevented the attack. But, even then, P.W.2 did not sustain any injury and even her sari was not stained with any blood. Though P.W.2 in her evidence would state that she saw that the deceased was lifted bodily by all the accused and taken to the house of A1, P.Ws.17 and 19, the Inspectors of Police, would state that such statement had not been made by P.W.2 during the course of investigation. 11. Though P.W.2 in her evidence would state that she saw that the deceased was lifted bodily by all the accused and taken to the house of A1, P.Ws.17 and 19, the Inspectors of Police, would state that such statement had not been made by P.W.2 during the course of investigation. 11. One more important aspect to be considered is the failure on the part of the investigating agency to produce the Accident Register relating to the injury caused on the victim. As a matter of fact, both P.Ws.17 and 21 would admit that the deceased was treated in the hospital. Even P.W.17, the Inspector of Police, would state that the victim was sent along with P.W.15, the Constable. But even then, they have not examined Dr.Shyamala, who treated the victim, and produced the Accident Register. On the other hand, on the defence side, the document, namely, Ex.D1 was marked. A perusal of Ex.D1 would indicate that the victim/deceased was brought to the hospital by the Constable and he was admitted at 6.10 p.m., and while the deceased was examined, it was stated to Dr.Shyamala that he was attacked by a known person with aruval. 12. So, it is clear from the earliest document, namely, Ex.D1, which was registered at 6.10 p.m., that only one person has involved, and that too, only on the attack made by the said single person, these injuries have been inflicted on the deceased. That is the reason why the prosecution has not chosen to mark that document, in order to avoid the court, knowing that only one person had involved in the attack. The consideration of the said important document, namely, Ex.D1, will go to the root of the matter. Thus, it is clear that the prosecution has not presented the true version as to what had really happened. 13. In the light of these infirmities, we are unable to accept the evidence of P.W.2, especially when the document Ex.D1, has been suppressed, and the said document would indicate that only one person involved in the attack. So, we are of the view that the benefit of doubt should be given to all the accused. Consequently, the conviction and sentence imposed on the appellants/accused 1 to 3 are set aside and they are acquitted of the charges. The bail bonds executed by them shall stand cancelled. Thus, these Appeals are allowed.