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2016 DIGILAW 352 (MAD)

Saravanan v. State Rep. by Inspector of Police

2016-01-29

P.N.PRAKASH, S.NAGAMUTHU

body2016
JUDGMENT : S. Nagamuthu, J. The appellant is the sole accused in S.C.No.80 of 2011 on the file of the learned Principal Sessions Judge, Dharmapuri, Dharmapuri District. He stood charged for offence under Section 302 of IPC. By judgment dated, the trial court convicted him under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for three months. Challenging the same, the sole accused 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. Rathinavel. He was a resident of Gandhi Nagar in Nallampalli Village. P.W.1 is his wife. The accused in this case is the sister's son of the deceased. He was residing in the neighbouring house with his wife Mrs. Sindhu. Frequently there arose quarrel between the accused and his wife-Mrs. Sindhi. Since Mrs. Sindhu is also related to the deceased, he intervened with a good intention of bringing harmony between them. On 28.01.2011, again there arose quarrel between the accused and his wife-Mrs. Sindhu. The deceased intervened and pacified. Then, at around 10.00 p.m., the deceased went to the house of the accused and wanted Mrs. Sindhu to serve food for him. The accused took exception to the same. The accused questioned the deceased as to how dare he was to come to the house to ask for food. This resulted again in a quarrel between the accused and his wife. After that the deceased returned to his house. 3. At around 01.00 a.m., it is stated that the deceased was in front of his house and at that time, it is alleged that the accused came there and stabbed him with a knife repeatedly on his chest, left thigh and other parts of the body. The occurrence was witnessed by P.Ws.1 to 4. The accused fled away from the scene of occurrence. P.W.1 and others immediately took the deceased to the Government Hospital in Dharmapuri. The Doctor who was on duty examined him and declared him as "brought dead". Then, the Doctor forwarded the body to mortuary and gave an intimation to the police. P.W.11, the then Inspector of Police, Adhiyamankottai Police Station, received intimation from the hospital at 03.00 a.m. on 29.01.2011. The Doctor who was on duty examined him and declared him as "brought dead". Then, the Doctor forwarded the body to mortuary and gave an intimation to the police. P.W.11, the then Inspector of Police, Adhiyamankottai Police Station, received intimation from the hospital at 03.00 a.m. on 29.01.2011. He rushed to the hospital and recorded the statement of P.W.1 at 04.00 a.m. On returning to the police station, he registered a case in Crime No.57 of 2011under Section 302 of IPC. Ex.P.1 is the complaint and Ex.P.8 is the FIR. Then, he forwarded both the complaint and the FIR to the court through P.W.9. The same was received by the learned Magistrate at 01.00 p.m. on 29.01.2011. 4. Taking up the case for investigation, P.W.11 proceeded to the place of occurrence and in the presence of P.W.5 and another witnesses, he prepared an observation mahazar (Ex.P.2) and rough sketch (Ex.P.9) at the place of occurrence. Then, he recovered some blood stained earth and sample earth under Ex.P.5 mahazar in the presence of the same witnesses. Thereafter, he conducted inquest on the body of the deceased at Government Hospital, Dharmapuri, during which, he examined P.Ws.1 to 4 and recorded their statements. Ex.P.11 is the inquest report. P.W.11 thereafter, forwarded the body for postmortem. 5. P.W.8 Dr. Sathya conducted autopsy on the body of the deceased on 29.01.2011 at 11.45 a.m. She found the following injuries:- "External Injuries:- (1) one stab injury over 9 cm below the left side of the nipple and 9 cm from the center of the chest size about 1.5 x 0.7 x 8 cm depth, spindle shape wound present. (2) Incised (stab) wound over lateral aspect of middle of the thigh size 1.7 x 0.7 x 1 cm present. (3) Abrasion over right side of the abdominal 1 x 0.5 cm. Internal Injuries: (1) Hyoid bone intact. (2) Thorax -sternum normal, Ribs normal. Intercostal space 6th space blood clot present. Heart-stab injury over inferior aspect of right ventricle size about 3 x 1 x entered into ventricular cavity. Post wall intact. c/s blood clot present. Pericardial cavity - 200 ml of clotted blood present. Lungs - Normal c/s pale. one litre of clotted blood present in thoracic cavity. Stomach - empty. Liver, spleen and kidney - Normal. cut section pale. Bladder empty. External genitalia - Normal. Skull Base of skull and vault - Normal. Meninges intact. Post wall intact. c/s blood clot present. Pericardial cavity - 200 ml of clotted blood present. Lungs - Normal c/s pale. one litre of clotted blood present in thoracic cavity. Stomach - empty. Liver, spleen and kidney - Normal. cut section pale. Bladder empty. External genitalia - Normal. Skull Base of skull and vault - Normal. Meninges intact. Bran -pale." Ex.P.4 is the postmortem certificate. She gave opinion that the deceased would appear to have died of shock and hemorrhage due to the injuries. 6. In the mean time, the accused surrendered before the learned Judicial Magistrate No.IV, Salem, on 29.01.2011. On information, P.W.11 took police custody of the accused. On 08.02.2011 at 07.00 a.m. while in police custody, in the presence of P.W.10 Mr. Mariappan, the Village Administrative Officer, Nallampalli Village and one Mr. Venkatesh Prabhu, the accused gave a voluntary confession. In the said confession, he disclosed the place where he had hidden the soori knife. In pursuance of the same, he took P.W.11 and the attesting witnesses P.W.10 and another to Nallamballai - Sivadi Railway Station road and took out the Knife (M.O.1) and produced the same. P.W.11 recovered the same under a mahazar (Ex.P.5) in the presence of the same witnesses. On returning to the police station, he forwarded the accused to the court for judicial remand and handed over the material objects also. Then, he gave a request to the court to forward the material objects for chemical examination. The chemical analyst report revealed that there were human blood stains on all the material objection including the knife. P.W.1 collected the medical records, examined the Doctor and finally filed the final report against the accused before the Judicial Magistrate No.I, Dharmapuri. 7. Based on the above materials, the trial court framed a lone charge under Section 302 of IPC. The accused denied the same. In order to prove the same, on the side of the prosecution, as many as 11 witnesses were examined, 17 documents and 7 materials objects were marked. 8. Out of the said witnesses, P.Ws1 to 4 claim to have seen the occurrence. They have vividly spoken about the same. P.W.5 has spoken about the preparation of observation mahazar and the rough sketch at the place of occurrence and also recovery of blood stained and sample earth from the place of occurrence. 8. Out of the said witnesses, P.Ws1 to 4 claim to have seen the occurrence. They have vividly spoken about the same. P.W.5 has spoken about the preparation of observation mahazar and the rough sketch at the place of occurrence and also recovery of blood stained and sample earth from the place of occurrence. P.W.6 and P.W.7 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.8 has spoken about the postmortem conducted on the body of the deceased and his final opinion regarding the cause of death. P.W.9 has stated that he handed over the complaint and the FIR to the jurisdictional court at 01.00 p.m. on 29.01.2011. P.W.10 has spoken about the voluntary confession of the accused and the consequential recovery of M.O.1 knife. P.W.11 has spoken about the registration of the case, entire investigation done and the final report filed by him. 9. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, he denied the same. However, he did not choose to examine any witness on his side nor did he mark any document. His defence was a total denial. 10. Having considered all the above, the trial court convicted the accused under section 302 of IPC and accordingly punished him as detailed in the first paragraph of this judgment. That is how, the accused is now before this court with this criminal appeal. 11. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully. 12. The learned counsel for the appellant/accused would submit that there is an inordinate delay in preferring the complaint which has not been explained away by the prosecution and thus, it creates a doubt in the case of the prosecution. He would further submit that the accident register recorded by the Doctor at the earliest point of time has not been marked in evidence. He would further submit that the doctor who examined the deceased at the first instance has also not been examined. The learned counsel would further submit that it is too difficult to believe that P.Ws.1 to 4 would have witnessed the occurrence inasmuch as the occurrence was at 01.00 a.m. in front of the house of the deceased. He would further submit that the doctor who examined the deceased at the first instance has also not been examined. The learned counsel would further submit that it is too difficult to believe that P.Ws.1 to 4 would have witnessed the occurrence inasmuch as the occurrence was at 01.00 a.m. in front of the house of the deceased. The prosecution has failed to appreciate the infirmities in the case of the prosecution in their proper perspective, the learned counsel contended. 13. The learned Additional Public Prosecutor would vehemently oppose this criminal appeal. According to him, the delay in preferring the complaint would not in any manner cause any dent in the case of the prosecution. Similarly, according to him, the non examination of the Doctor who treated the deceased at the first instance also would not cause any dent in the case of the prosecution. He would further submit that the presence of P.Ws.1 to 4 is quite natural and the same cannot be doubted. He would also submit that the medical evidence duly corroborates the eyewitnesses account. Thus, according to him, the conviction and sentence imposed by the trial court requires to be confirmed. 14. We have considered the above submissions carefully. 15. From the records and the evidence available it is seen that the occurrence had taken place just by the side of the road which runs North-South. The house of the deceased is far off from the place of occurrence. P.W.1 is the wife, P.W.2 is the daughter, P.W.3 is the sister and P.W.4 is the sister's son respectively of the deceased. They have stated that they were sitting near the street light post at 01.00 a.m. at the time of occurrence. It is too difficult for us to persuade ourselves to believe that at the odd hours these witnesses would have been sitting under the light post instead of being in their respective house. No explanation what so ever was spoken by any of these witnesses as to why they were sitting on the street at 01.00 a.m. under the street light post. This creates an initial doubt in the case of the prosecution. No explanation what so ever was spoken by any of these witnesses as to why they were sitting on the street at 01.00 a.m. under the street light post. This creates an initial doubt in the case of the prosecution. It is seen from Ex.P.7, the death intimation given by the Doctor from the Government Hospital, Dharmapuri, to the police that it was given at 06.10 a.m. There is no evidence that at what time the deceased was brought to the hospital and by whom. It is also essential to know as to what was the earliest information passed on by either P.W.1 or the person who accompanied the deceased to the hospital. That statement should have been entered in the accident register. That being the earliest statement, the same carries weightage. But, unfortunately, neither the accident register containing such statement has been marked, nor the Doctor who examined the deceased at the earliest point of time has been examined. In order to satisfy our judicial conscience, we directed the Additional Public Prosecutor to produce the accident register, if available. Having taken some time, he informed the court that the accident register is not available. Thus, the suppression of the said vital document creates further doubt about the veracity of the case of the prosecution. 16. Next comes the FIR. According to P.W.11, the Investigating Officer, he received Ex.P.7 at 03.30 a.m. on 29.01.2011. After having obtained the statement of P.W.1 under Ex.P.1, he has stated that he registered the case at 06.30 a.m. But, the FIR has reached the hands of the learned Judicial Magistrate only at 01.00 p.m. on 29.01.2011 which is evident from the endorsement made by the learned Judicial Magistrate. Thus, there is enormous delay in forwarding the FIR to the court. P.W.9 is the Police Constable, who took the FIR from the police station and handed over the same to the court. But, a perusal of the evidence would go to show that he has not at all stated as to when he received the FIR from P.W.1 and why he took so much of time to reach the court to hand over the FIR. Absolutely, there is no explanation for the delay. But, a perusal of the evidence would go to show that he has not at all stated as to when he received the FIR from P.W.1 and why he took so much of time to reach the court to hand over the FIR. Absolutely, there is no explanation for the delay. But, during the course of cross examination, he has stated that at 09.00 a.m. on 29.01.2011 he received the dead body after inquest from the Inspector of Police and handed over the same to the Doctor for postmortem. Only after the handing of the dead body of the deceased to the Doctor at 10.00 a.m., P.W.9 would have gone to the court of the learned Judicial Magistrate and handed over the FIR at 01.00 p.m. Thus, it is doubtful as to whether the FIR would have come into being at the time as it is projected by the prosecution Thus; these infirmities create doubt in the case of the prosecution. These doubts, which are reasonable, have not been explained away by the prosecution at all. Though P.W.1 to P.W.4 have claimed to be the eyewitnesses, we find it difficult to believe that they would have been present at the time of occurrence and would have witnessed the occurrence. Having regard to all the above, we hold that the prosecution has failed to prove the case beyond reasonable doubts and the appellant/accused is therefore entitled for acquittal on account of the benefit of doubts. 17. In the result, the appeal is allowed and the conviction and sentence imposed on the appellant/accused by the trial court is hereby set aside and the appellant/accused is acquitted from the charge. Fine, if any, paid by the appellant/accused shall be refunded to him. Bail Bond executed by the appellant/accused shall stand cancelled.