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2015 DIGILAW 3267 (MAD)

Thiyagarajan v. State of Tamil Nadu

2015-10-07

S.NAGAMUTHU, V.S.RAVI

body2015
JUDGMENT : S. NAGAMUTHU, J. The appellant is the sole accused in S.C.No.29 of 2011 on the file of the Additional District and Sessions cum Fast Track Court, Periyakulam. He stood charged for the offence under Section 302 IPC. By judgment dated 30.09.2011, the trial Court convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows; (a) The deceased in this case was one Sivaselvakumar. The accused and the deceased belong to the same village. The accused has sister by name Sudha. The deceased is none else than the cousin of the accused. Some time before the occurrence, the deceased had spread a rumour that he had illicit intimacy with Sudha. The accused felt ashamed of the same. Therefore, according to the case of the prosecution, he decided to do away with the deceased. This is stated to be the motive. (b) On 10.03.2010 in the evening, the accused lured the deceased and took him to Papipatti Kanmoi. One Baskaran also accompanied them. All the three were sitting on the bridge. PW4 and one Gurusamy were passing through the said bridge, as they were proceeding to some other place. At that time, the deceased, accused and Mr. Baskaran were sitting on the culvert and they were all smoking cigarettes. PW4 and Gurusamy stayed back at a distance and waited to watch as to what was going on. After enjoying a cigarette, Mr. Baskaran left the culvert. After some time, the accused asked the deceased to remain back on the culvert and went away. Within five minutes thereafter, the accused returned to the said place with a wooden log in his hands. On reaching the place of occurrence, he attacked the deceased indiscriminately with wooden log. The deceased fell down and breathed his last. This was fully watched by PW4 and Mr.Gurusamy. Then, the accused dragged the dead body of the deceased to a nearby stone, left it there and ran away from the scene of occurrence. PW4 and Mr.Gurusamy returned to their village. But, they did not inform the same to anybody, including the family members of the deceased out of fear. This was fully watched by PW4 and Mr.Gurusamy. Then, the accused dragged the dead body of the deceased to a nearby stone, left it there and ran away from the scene of occurrence. PW4 and Mr.Gurusamy returned to their village. But, they did not inform the same to anybody, including the family members of the deceased out of fear. (c) The next day morning at 7.00 a.m. the people found the dead body of the deceased. After seeing the dead body, PW3 informed the same to PWs.1 and 2. PWs.1 and 2 rushed to the place of occurrence at 7.00 a.m. and they found the dead body of the deceased with injuries. Then, PW1 proceeded to the place of occurrence and made a complaint. PW12, the then Sub Inspector of Police, Thenkarai Police Station, received the said complaint at 8.00 a.m. on 11.03.2010 and registered a case in Crime No.232 of 2010 under Section 302 IPC. Ex.P8 is the FIR. He forwarded the complaint (Ex.P1) and FIR (Ex.P8) to the Court and handed over the investigation at 8.30 a.m. to the Inspector of Police for investigation. (d) PW14 took up the case for investigation, proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of PW10 and another witness. PW14 had arranged for Police sniffer dog to help the investigation. Accordingly, the Police sniffer dog was brought to the place of occurrence and after having scent from the place of occurrence, the sniffer dog went to a distance. But, the same did not bring out any clue regarding the occurrence. Then, he conducted inquest on the body of the deceased and forwarded the body for postmortem. Until then, the assailants were not known to anybody. (e) PW11 -Dr. Karthikeyan conducted autopsy on the body of the deceased at 2.30 p.m. on 11.03.2010. He found the following injuries: “Antemortem injuries : 1. Laceration in the scalp of size 3 x 1 x 2 cm over the right occiput temporal region, irregular edges and no dirt/sand over the area. 2. Nasal bleeding. 3. Multiple contusions about 25-30 of varying sizes noted over the entire back of the body, reddish colour. 4. Abrasions noted in the following area. a) Left-elbow 3 x 2 cm b) Right forearm 3 x 4 cm. 2. Nasal bleeding. 3. Multiple contusions about 25-30 of varying sizes noted over the entire back of the body, reddish colour. 4. Abrasions noted in the following area. a) Left-elbow 3 x 2 cm b) Right forearm 3 x 4 cm. On dissection of the scalp, skull and dura: 1) Contusion of the scalp 20 x 15 cm noted in the right occiput temporal region. 2) Diffuse subdural haemorrhage. 3) Subarachnoid haemorrhage noted over both cerebran hemispheres. 4) Cerebellar contusion noted. 5) Cerebrum contused on both right and left side. 6) Skull fracture in occiput temporal region about 5 x 1 x ½ cm with chips of bone seen inside the skull.” Ex.P6 is the postmortem certificate. Ex.P7 is the final opinion given by him. According to him, these injuries would have been caused by a wooden log like MO.1. He gave further opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries to the vital organs, particularly to the brain. (f) PW14 came to know that on 15.03.2010 the accused had surrendered before the learned Judicial Magistrate No. I, Dindigul. He took the Police custody of the accused on 18.03.2010 on the orders of the learned jurisdictional Magistrate. While in the Police custody, on 18.03.2010 he gave a voluntary confession in the presence of PW5 and another witness. In the said statement, he disclosed the place where he had hidden a money burse, a full hand shirt and photograph of the deceased. In pursuance of the same, the accused took PW14, PW5 and other witnesses to his house at Kailasapatti and produced the said material objects from the hide out. PW14 recovered the same under a mahazar. On returning to the Police Station, he forwarded the accused to the Court for judicial remand and forwarded the material objects also to the Court. He made a request to the Court for sending the material objects for chemical examination. The report revealed that there was human blood of AB group on all the material objects including the wooden log recovered from the place of occurrence. On completing the investigation, he laid charge sheet against the accused. (g) Based on the above materials, the trial Court framed a lone charge under Section 302 IPC against the accused. The accused denied the same. On completing the investigation, he laid charge sheet against the accused. (g) Based on the above materials, the trial Court framed a lone charge under Section 302 IPC against the accused. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 14 witnesses were examined and 13 documents and 11 material objects were marked. (h) Out of the said witnesses, PWs.1 and 2, the brother and mother respectively of the deceased have stated that on 11.03.2010, they were informed by PW3 that the dead body of the deceased was found near the bridge. They rushed there and found the dead body. Thereafter, according to them, PW1 made a complaint. PW3 has turned hostile and he has not supported the case of the prosecution in any manner. PW4 is the sole eyewitness to the occurrence. He has narrated the entire occurrence. PW5 has stated about the disclosure statement made by the accused while in Police custody and the consequential recovery of material objects. PW6 is the sister of the deceased, who has not stated anything incriminating against the accused. PW7 is the Head Constable, who has stated that he carried the FIR from the Police Station to the Court. PW8 is yet another Police Constable, who has spoken about the fact that he carried the dead body for postmortem. PW9 has turned hostile and he has not supported the case of the prosecution in any manner. PW10 has spoken about the preparation of the observation of mahazar by PW14 and recovery of material objects from the place of occurrence. PW11 has spoken about autopsy conducted and his final opinion regarding the cause of death. PW12 has spoken about the registration of the case. PW13 has spoken about the chemical analysis conducted by her on the material objects. She has further stated that the human blood of AB group was found on all material objects. PW14 has spoken about the investigation done. (i) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. On his side, he examined one Sathiyamoorthy, the then Branch Manager of the State Transport Corporation, Periyakulam as DW1. According to him, the deceased was on leave from his Office on the crucial date of the occurrence. Exs.D1 and D2 are the documents relating to the same. On his side, he examined one Sathiyamoorthy, the then Branch Manager of the State Transport Corporation, Periyakulam as DW1. According to him, the deceased was on leave from his Office on the crucial date of the occurrence. Exs.D1 and D2 are the documents relating to the same. (j) Having considered all the above, the trial Court convicted the accused under Section 302 IPC and accordingly, punished him. That is how he is before this Court with this appeal. 3. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully. 4. This is a case where the prosecution relies mainly on the eyewitness account of PW4. It needs to be pointed out that if the evidence of PW4 is found to be unbelievable, then the entire case of the prosecution should fall to the ground. The learned senior counsel appearing for the appellant would submit that PW4 is not believable, as his conduct would go to show that it is highly unnatural. According to him, he along with one Mr. Gurusamy was passing through the bridge, where the accused, deceased and one Mr. Baskaran were sitting on the culvert and smoking cigarettes. He has stated that in order to see as to what these three persons were doing, he along with Gurusamy was waiting at a distance. It is not known as to what was the curiosity that they had to see what these people were doing by sitting on the culvert. The conduct of PW4 is something unnatural, because even according to him, they were only smoking cigarettes, in which there was nothing surprising and they were close relatives. It is his further evidence that after enjoying cigarette for quite some time, Mr.Baskaran left the place. Even then, according to PW4, he was still waiting and watching, along with Mr.Gurusamy. After some time, the accused left the culvert asking the deceased to stay back on the culvert. Even then, PW4 and Mr.Gurusamy did not leave the place. PW4 has stated that he was still waiting. After five minutes, according to PW4, the accused returned to the culvert with a wooden log and started attacking the deceased on his head. Neither PW3 nor Mr.Gurusamy raised any alarm on seeing the same. Even then, PW4 and Mr.Gurusamy did not leave the place. PW4 has stated that he was still waiting. After five minutes, according to PW4, the accused returned to the culvert with a wooden log and started attacking the deceased on his head. Neither PW3 nor Mr.Gurusamy raised any alarm on seeing the same. The occurrence was at 9.30 p.m. Even after the deceased fell down, he did not leave. He was waiting to see as to what further was going to happen. He has further stated that the accused dragged the deceased, put him near a stone and then ran away. It is only thereafter, according to him, he left the place of occurrence. He, along with Mr.Gurusamy, did not go near the dead body. By all natural human conduct, PW4 and Mr.Gurusamy would have at least informed the same to the family members of the deceased or to some one else. But, PW4 would state that on returning home, he did not inform the same to anybody out of fear. This explanation is not at all believable. 5. On the next day morning at 7.00 a.m. according to PW4, he came to know that the people were rushing to the place of occurrence on noticing the dead body of the deceased. He has further admitted that he also went to the place of occurrence. Even then, he did not inform to anybody about the occurrence. After the arrival of the Police also, he was very much present. The Police had brought sniffer dog and the sniffer dog ran to a distance. Though PW4 was seeing every efforts taken by the Police to know the culprit, even then PW7, who was present at the place of occurrence, did not disclose the above occurrence to anybody. The body was sent for postmortem. It was only on 13.03.2010 for the first time, he states that he disclosed about the occurrence to the Inspector of Police. There is no reason as to why after a long time he disclosed the same to the Inspector of Police. This conduct of PW4 is highly unnatural which makes his evidence unbelievable. In our considered view, PW4 has been planted as an eyewitness by the Police, in order to strengthen the case of the prosecution. There is no reason as to why after a long time he disclosed the same to the Inspector of Police. This conduct of PW4 is highly unnatural which makes his evidence unbelievable. In our considered view, PW4 has been planted as an eyewitness by the Police, in order to strengthen the case of the prosecution. If once we hold that the evidence of PW4 is not trustworthy, then, as we have already pointed out, for want of evidence, the prosecution should fall to the ground. Apart from the said evidence, there is no other evidence available on record to prove the alleged guilt of the accused. 6. The learned Additional Public Prosecutor would submit that the recovery of the clothe materials and a money purse at the instance of the accused would strengthen the case of the prosecution. Assuming that the recovery of these material objects was at the instance of the accused, from out of that alone we cannot conclusively hold that it was this accused who caused the death of the deceased. 7. In view of all the above, we hold that the prosecution has failed to prove the case beyond reasonable doubts. But, the trial Court has convicted the accused on mere surmise which is not permissible under law. 8. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/accused in S.C.No.29 of 2011 is set aside and he is acquitted. The bail bond, if any, executed by him shall stand cancelled. The fine amount, if any, paid shall be refunded to the appellant.