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2013 DIGILAW 470 (MAD)

State rep by The Inspector of Police v. S. Ponraj

2013-01-22

M.JAICHANDREN, S.NAGAMUTHU

body2013
Judgment S. Nagamuthu, J. 1. This is an appeal, against acquittal, filed by the State. The respondents were the accused in S.C.No.198 of 2008, on the file of the learned Additional Sessions Judge cum Fast Track Court No.I, Thoothukudi. They stood charged for offences under Sections 302 r/w 34 and 506(ii) of the Indian Penal Code. By Judgment dated 06.05.2009, the Trial Court acquitted them. As against the same, the State is now before this Court with this Criminal Appeal. 2. The case of the prosecution, in brief, is as follows:- The deceased, in this case, was one Mr. Ananthappan. PW-1 is his son. PW-1 had fallen in love with one Muthulakshmi for about one and half years. The said Muthulakshmi is none other than the sister of the accused 1 and 2. The accused, who are the brothers of the said Muthulakshmi, opposed the said love affair stoutly. However, much against the wish of the accused, PW-1 married the said Muthulakshmi. The said marriage was celebrated with the help of the deceased and the other family members of PW-1. This was not to the liking of the accused. This is projected to be the motive for the occurrence. 2.1. On 06.10.2007, at about 01.15 PM, the deceased was standing in front of the rest room of Hutch Tower. PW-2 is the sister of PW-1. PW-1 and PW-2 claim that they had gone to the Hutch Tower to hand over lunch to the deceased. At that time, it is alleged that these two accused came to the place of occurrence and mounted attack on the deceased. The first accused cut the deceased with sickle on his right wrist and then on the neck. The second accused cut him with sickle on the left wrist and on the back side of the head repeatedly. PW-1 and PW-2 could not go near them out of fear. They raised alarm. PW-3 and PW-4 rushed to the place of occurrence. On seeing them, the accused ran away from the place of occurrence with the weapons. The deceased succumbed to the injuries on the spot. 2.2. PW-5 is a resident of Kakkampatti Village. On 06.10.2007, he had gone to a tea shop at Ottapidaram. According to him, PW-1 and PW-2 came to the said tea shop and informed him about the occurrence. Then, PW-5 drafted the complaint, in which PW-1 signed. PW-4, Mr. The deceased succumbed to the injuries on the spot. 2.2. PW-5 is a resident of Kakkampatti Village. On 06.10.2007, he had gone to a tea shop at Ottapidaram. According to him, PW-1 and PW-2 came to the said tea shop and informed him about the occurrence. Then, PW-5 drafted the complaint, in which PW-1 signed. PW-4, Mr. S. Sundarraj also signed as a witness in the said complaint. Then, PW-1 proceeded to the Ottapidaram Police Station and at 02.30 PM, he presented the said complaint to the Sub – Inspector of Police. PW-20, the then Sub–Inspector of Police, attached to the Ottapidaram Police Station, registered a case in Crime No.102 of 2007, under Sections 302 and 506(ii) of the Indian Penal Code. EX-P1 is the complaint and EX-P13 is the First Information Report. Then, he forwarded the above documents to the Court and handed over the case diary to the Inspector of Police for investigation. 2.3. PW-21, the then Inspector of Police, attached to the Ottapidaram Police Station, took up the case for investigation at 03.00 PM, on 06.10.2007. On reaching the place of occurrence at 03.10 PM, he prepared an Observation Mahazer, EX-P2 in the presence of PW-6 and another witness. He also prepared a Rough Sketch, EX-P14, showing the place of occurrence. Then, he conducted inquest on the body of the deceased between 03.30 PM and 05.30 PM and prepared EX-P15, Inquest Report. During inquest, he examined PW-1 to PW-4 and few more witnesses and recorded their statements. Then, he recovered bloodstained earth and sample earth from the place of occurrence in the presence of the same witnesses. Thereafter, he forwarded the dead body for postmortem. 2.4. PW-16, Dr. V. Valamarthi, conducted autopsy on the body of the deceased at 05.30 PM, on 06.10.2007. She found the following injuries:- "1. 'V' shaped cut injury over the (right) side of the occipital area of the scalp seen 3 X 3 cm depth; 8 cm A chip of occipital bone attached to the flap of skin. 2. cut injury about 8 X 3 cm seen in the centre of the occipital area. 3. cut injury about 12 X 5 cm on the vertex of the scalp extending to (left) parital region. 4. cut injury about 8 X 4 cm seen on the right parital region of scalp. 5. 2. cut injury about 8 X 3 cm seen in the centre of the occipital area. 3. cut injury about 12 X 5 cm on the vertex of the scalp extending to (left) parital region. 4. cut injury about 8 X 4 cm seen on the right parital region of scalp. 5. 'V' shape cut injury over sub mental are seen 3 X 3 cm depth over. 6. cut injury at the level of C3 spinal cord. Spinal cord, surrounding muscle, vessels and nerves were cut, except spin of posterior aspect of the neck with posterior pant of skin is intact with body. 7. cut injury spin 5 X 4 cm over flexer aspect of right wrist. 8. cut injury spine 4 X 2 cm seen 2" below the previous injury. 9. cut injury over the dorsum of the left hand injury 15 X 5 cm." EX-P12 is the Postmortem Certificate. He opined that the deceased would appear to have died of shock and haemorrhage due to cut injuries. He further opined that the injuries would have been caused by a weapon, like MO-4, sickle. 2.5. PW-21 continued the investigation and arrested the accused on 07.10.2007, at 04.00 PM, near Ottapidaram Pallivasal in the presence of PW-6 and another witness. On such arrest, he gave a voluntary confession, in which he had disclosed the place, where he had hidden the sickle. In pursuance of the same, he took the police and the witnesses to the said place and produced sickle [MO-4]. PW-21 recovered the same under a mahazer. PW-21 recovered the dress materials of the accused, [MO-9 and MO10]. He produced the accused before the Court for judicial remand. The second accused surrendered before the learned Judicial Magistrate No.I, Tirunelveli, on 09.10.2007. On the orders of the learned Judicial Magistrate, on 14.11.2007, he took custody of the second accused. On the same day, while in the Police Station, the second accused gave a voluntary confession in the presence of PW-6 and another witness. In the said confession, he had disclosed the place, where he had hidden the sickle. In pursuance of the same, he took the police and the witnesses to the said place and produced sickle. PW-21 recovered the same under a mahazer. Thereafter, on a request made by PW-21, the Material Objects were sent for chemical examination. In the said confession, he had disclosed the place, where he had hidden the sickle. In pursuance of the same, he took the police and the witnesses to the said place and produced sickle. PW-21 recovered the same under a mahazer. Thereafter, on a request made by PW-21, the Material Objects were sent for chemical examination. EXP18 is the Chemical Analyst Report and EX-P19 is the Serology Report. As per the opinion of the Chemical Analyst, bloodstain was found on one of the sickles. The other sickle was not sent for chemical examination. 2.6. Finally, on completing the investigation, PW-21 laid charge sheet against the accused. In order to prove the case of the prosecution, on the side of the prosecution, as many as twenty one witnesses were examined and nineteen documents were exhibited, besides, ten Material Objects. 3. Out of the said witnesses, PW-1 and PW-2 were examined as eye witnesses. PW-3 and PW-4 have turned hostile. PW-1 and PW-2 alone have vividly spoken to about the occurrence. PW-5 has spoken to about the drafting of the complaint by him, [EX-P1]. PW-6 has spoken to about the preparation of Observation Mahazer, EX-P2 and recoveries of sickles at the instance of the accused. PW-7 and PW-8 have also turned hostile. PW-9 has not stated anything incriminating against the accused. PW-10 is the father of the deceased. He has also not stated anything against the accused. PW-16 is the doctor, who conducted autopsy on the body of the deceased. The others are the official witnesses. 4. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, they denied the same as false. However, they did not choose to examine any witness on their side nor to exhibit any document in their defence. Having considered the above materials, the Trial Court acquitted the accused of all charges. That is how, the State is before this Court with this Criminal Appeal. 5. We have heard the learned Additional Public Prosecutor for the State and the learned counsel appearing for the respondents/accused 1 and 2 and perused the records carefully. 6. As we have pointed out earlier, the prosecution relies only on the eye witness account of PW-1 and PW-2. The Trial Court has disbelieved the evidence of PW-1 and PW-2 for number of reasons. 6. As we have pointed out earlier, the prosecution relies only on the eye witness account of PW-1 and PW-2. The Trial Court has disbelieved the evidence of PW-1 and PW-2 for number of reasons. The foremost reason stated by the Trial Court is that PW1 and PW-2 would not have been present at the time occurrence at all. According to the evidences of PW-1 and PW-2, they had gone to the Hutch Tower taking lunch for the deceased. Their houses are not situated anywhere near the place of occurrence. Thus, their presence at the time of occurrence is merely by chance. It is the settled law that if a witness happens to be a chance witness, his evidence requires a very close scrutiny and it is absolutely necessary for the prosecution to explain as to what made the witness to be present at the crucial time in the place of occurrence. Here, in this case, the only explanation offered by the prosecution is that PW-1 and PW-2 had gone to Hutch Tower to serve food to the deceased. 7. Let us, therefore, scrutinize their evidences with care and caution. After the occurrence, it is stated that PW-5 came to the place of occurrence and as requested by PW-1, PW-5 drafted the complaint, EX-P1. But, PW-5 has stated that the complaint was drafted only at the Police Station, as dictated by the police. Though in the chief – examination, he has stated that the complaint was drafted in a tea shop at Ottapidaram, in cross-examination, he has stated that when he had gone to the Police Station, PW-1 and PW-2 were already present in the Police Station, where as dictated by the police, the complaint was drafted. This positive admission made by PW-5 has been given weight age of by the Trial Court to hold that PW-1 and PW-2 would not have been present at the time of occurrence and EX-P1 had come into being only after due deliberation. We do not find any reason to take a different view on this aspect. PW-1, in cross-examination, has, however, stated that he found PW-5 near a tea shop, where the complaint was drafted. He has stated that it is only a drafted complaint, which was given to the police. This has also been taken note of by the Trial Court. We do not find any reason to take a different view on this aspect. PW-1, in cross-examination, has, however, stated that he found PW-5 near a tea shop, where the complaint was drafted. He has stated that it is only a drafted complaint, which was given to the police. This has also been taken note of by the Trial Court. The Trial Court has further noticed that though the First Information Report is said to have been registered at 02.30 PM, it had reached the learned Judicial Magistrate only at 10.30 PM. Absolutely, there is no explanation offered by the prosecution for the said delay. The said delay assumes much importance in the wake of the admission made by PW-5 that the complaint was drafted only as dictated by the police. 8. The next ground recorded by the Trial Court is that the medical evidence does not corroborate the eye – witness account. According to the Trial Court, at the time when autopsy was conducted at 05.30 PM, on 06.10.1997, rigor mortis had set in both the limbs of the deceased. According to the Trial Court, rigor mortis would, in normal course, set in only after 12 hours of the occurrence. The doctor has opined that rigor mortis would occur at least after 15 hours of the death. Based on this, the Trial Court has come to the conclusion that the occurrence would not have taken place at 01.15 PM. The learned Additional Public Prosecutor would submit that this finding of the Trial Court is not sustainable. 9. In our considered view, it is also possible to hold that the deceased would have died at 01.15 PM, because, setting of rigor mortis on the deceased depends upon various facts and circumstances, like climate, condition of the body, etc. But, at the same time, the view taken by the Trial Court cannot be stated to be an impossible view. In our considered view, it is also possible to hold that the deceased would have died at 01.15 PM, because, setting of rigor mortis on the deceased depends upon various facts and circumstances, like climate, condition of the body, etc. But, at the same time, the view taken by the Trial Court cannot be stated to be an impossible view. It is the settled law that in an appeal against acquittal, when there are two views equally possible, one in favor of the accused and the other incriminating him, in normal course, the view taken by the Trial Court should not be interfered with by the Appellate Court, unless it is shown to the Court that the view taken by the Trial Court is not at all a possible view and a man of ordinary prudence would not have taken such a view. Here, in this case, it cannot be said that the view taken by the Trial Court is an impossible view. Though a different view is also possible, because of the legal constraints, we cannot substitute our view in the place of the view taken by the Trial Court. It is needless to point out that the acquittal of the accused by the Trial Court adds to the presumption of innocence of the accused. Unless such presumption is rebutted by the prosecution, it is not at all possible for the Appellate Court to interfere with the Judgment of the Trial Court acquitting the accused. In view of the above, we do not find any merit in this Criminal Appeal. 10. In the result, this Criminal Appeal is dismissed and the Judgment dated 06.05.2009 made in S.C.No.198 of 2008, on the file of the learned Additional Sessions Judge cum Fast Track Court No.I, Thoothukudi, is hereby confirmed.