Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
12. 08.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE V.S.RAVI CRIMINAL APPEAL (MD).No.362 of 2010 1.Rajamanickam S/o.Rengasamy 2.Palanivel S/o.Rajamanickam 3.Vijayalakshmi W/o.Rajamanickam : Appellants Vs. The State represented by Inspector of Police Panthanallur Police Station Panathanallur : Respondent PRAYER Appeal is filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the Sessions Court, (Additional District & Sessions Judge), Thanjavur, in S.C.No.30 of 2010 dated 12.04.2010. !For Appellants : Mr.B.Jameel Arasu ^For Respondent : Mr.C.Mayilvahana Rajendran Additional Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellants are the accused 1 to 3 in S.C.No.30 of 2010 on the file of the learned Additional District & Sessions Judge, Fast Track Court, Thanjavur. They stood charged for offences under Sections 302 and 506(ii) IPC. By judgment dated 12.04.2010, the trial Court convicted all the accused under Section 302 IPC alone and acquitted them from the charge under Section 506(ii) IPC. The trial Court sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.1,000/-, each, in default, to undergo simple imprisonment for six months. Challenging the said conviction and sentence, the appellants are before this Court with this appeal.
2. The case of the prosecution in brief is as follows: The deceased in this case was one Mrs.Selvakumari. P.W.5 is her husband. They were residing in Chinna street, at Mullangudi village. The house of the accused is situated on the opposite side of the house of the deceased. P.W.1 is the sister of P.W.5. P.W.2 is the husband of P.W.1 and P.W.3 is the son of P.Ws.1 and 2. P.Ws.1 to 3 belonged to Vilangudi Village. 2.1. So far as the accused are concerned, the first accused is the husband of the third accused and the 2nd accused is their son. It is alleged that for quite some time, there was no cordiality between the two families and they were living in enmity. On 15.03.2009, P.W.5 had gone to the motor pump set of the first accused for taking bath. The third accused was somewhere working in the field near the pumpset. On seeing P.W.5 taking bath in the pump set, the third accused came near him and questioned him as to how he could come to her motor pump set to take bath, when there was enmity between the two families. The third accused also abused him. Therefore, P.W.5 returned to his house. The third accused, it is alleged, on returning to her house had informed the accused 1 and 2 that P.W.5 had made sexual overtures against her in the motor pump set. Therefore, the accused 1 and 2 came in front of the house of P.W.5 and quarreled with P.W.5. This quarrel went on for a long time. Out of fear that some untoward incident might happen, P.W.5 informed P.W.1 over phone to come for his help. Accordingly, P.Ws.1 to 3 had come to the house of P.W.5. Now, at around 7.00 p.m., P.Ws.1 to 3, P.W.5 and the deceased were at the house of P.W.5. At that time, P.W.1 spoke to the third accused with a view to compromise the issue. But the third accused went away challenging that she would return with her supporters. 2.2. P.Ws.1 to 3, P.W.5 and the deceased were still at the house of P.W.5. At that time, all the three accused came in front of the house of P.W.5. All of them were armed with one knife each. On seeing these three accused with weapons, P.W.5 started running. P.Ws.1 to 3 also started running. The deceased Selvakumari alone stayed back. Immediately, the 2nd accused stabbed the deceased on her stomach. The third accused stabbed her on the right thigh and the first accused stabbed her on the left side of the hip. Then, they intimidated P.W.5 that they would not allow him to live and then, fled away from the scene of occurrence. P.Ws.1 to 3 returned back and found the deceased with injuries. They found that she was already dead. Thereafter, P.Ws.1 to 3 sat together and prepared a complaint. P.W.3 drafted the same to the dictation of P.W.1. When P.Ws.1 to 3 went to Thirupananthal Police Station and presented Ex.P1 complaint to the police at 10.00 p.m. P.W.22, the then Inspector of Police of Thirupananthal Police Station, on receipt of Ex.P1, registered a case in Crime No.67 of 2009 under Sections 302 and 506(ii) IPC against all the three accused. Then, he handed over the FIR to P.W.20 to hand over the same to the jurisdictional Magistrate at Kumbakonam. Accordingly, Ex.P1 and Ex.P20 were handed over to the learned Judicial Magistrate, at 1.40 a.m. on 17.03.2009. 2.3. The investigation was taken up by P.W.22. He proceeded to the place of occurrence and prepared an observation mahazar at 11.00 p.m. itself in the presence of P.W.4 and another witness. He also prepared a rough sketch showing the place of occurrence. Then, he recovered bloodstained earth and sample earth from the place of occurrence in the presence of the same witnesses under a mahazar. He then arranged for photographing the dead body and its location. P.W.18 took photographs. He held inquest on the body of the deceased and then, he forwarded the body for postmortem. 2.4. P.W.15 ?. Assistant Surgeon attached to Thirupananthal Government Hospital conducted autopsy on the body of the deceased on 17.03.2009 at 11.30 a.m. He noticed the following injuries:
1. An incised wound at right thigh linear, margins regular vertical edges clear cut no bruises, regular edges. Dimensions 2.5 cm length 0.5 cm breadth at the centre of the wound 6 cm depth and 14 cm from the public symbiosis (Right tubercle and 22 cm form the anterior superior iliac spine (Right) 2.An incised wound at the left side of the upper abdomen (left hypochondrium) linear, margins regular, under direction of the wound is oblique about 2.5 x 1 cm and depth cannot be measured and situated 15 cm above the left anterior superior iliac spine, in the anterior auxiliary line. 3.An irregular injury at left side of the lower chest below the left breast and 3 cm above the 2nd wound 4 cm x 1.5 cm x depth cannot be measured and situated at anterior auxiliary line with oblique under direction (on palpation there is fracture of rib bone left 10th rib fracture (left)) He opined that the death was due to shock and hemorrhage due to the cumulative effect of all the three injuries. 2.5. Continuing the investigation, P.W.22, on the same day, arrested the accused 2 and 3 in the presence of P.W.6 near Anaikarai Travellers Bungalow. On such arrest, the 2nd accused gave a voluntary confession, in which, he disclosed that he would identify the place, where he had hidden the knife. In pursuant of the said confession, the 2nd accused took P.W.22 and the witnesses and produced a knife. Similarly, the third accused also gave a voluntary confession, out of which, yet another knife was recovered in the presence of P.W.6 and another witness. Then, he returned to the police station along with the accused and the material objects and then forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. 2.6. The first accused surrendered before the learned Judicial Magistrate at Kattumannargudi. P.W.22 took the first accused into police custody on the orders of the learned Judicial Magistrate on 24.03.2009. While in police custody, he gave a voluntary confession, in which, he disclosed the place, where he had hidden the knife. In pursuance of the same, he took the police and the witnesses to his motor shed, took out a knife and produced the same and it was also recovered by P.W.22 in the presence of witnesses. He made a request to the Court for forwarding the material objects for chemical examination. According to the report, all the three knives contained human blood of 'A' Group. He examined the Doctor, collected the medical records. Finally, on concluding the investigation, he laid charge sheet against the accused on 24.04.2009. 2.7. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of the judgment. The accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 22 witnesses were examined, 25 documents were exhibited and 11 material objects were marked. 2.8. Out of the said witnesses, P.Ws.1,2,3 and 5 are the eye witnesses to the occurrence. They have spoken vividly about the occurrence, more particularly, about the overt acts of each accused. P.W.4 has spoken about the preparation of observation mahazar by P.W.22 and the recovery of bloodstained earth and sample earth from the place of occurrence. P.W.6 has spoken about the arrest of the accused 2 and 3 on 17.03.2009, the disclosure statement made by them and the consequential recoveries of the weapons. P.Ws.7 to 13 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.14 ?. the Village Assistant has spoken about the disclosure statement made by the first accused, while in police custody and the consequential recovery of the weapons. P.W.15 ?. Dr.Arun Ilavazhagan has spoken about the postmortem conducted by him and his final opinion. P.W.16 is the Head Clerk of the learned Judicial Magistrate Court, who forwarded the material objects for chemical examination. P.W.17 ?. Scientific Assistant, Forensic Sciences Lab, has spoken about the analysis conducted by him and the results. P.W.18 is the Photographer, according to him, he took photograph of the dead body at the place of occurrence. P.W.19 is the official from TNEB, who had stated that on the date of occurrence, there was no electricity cut at the place of occurrence. P.W.20 is the Constable, who carried the FIR from the police station to the house of the learned Magistrate. According to him, he received the FIR at 10.00 p.m., on 16.03.2009 and handed over the same to the jurisdictional Magistrate at 1.40 a.m. on 17.03.2009. He has stated that he went by a vehicle from Thirupananthal to Kumbakonam. P.W.21 is the Constable, who carried the dead body from the place of occurrence to the hospital for postmortem. P.W.22 has spoken about the entire investigation done. 2.9. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witnesses on their side nor marked any documents. Having considered all the above, the trial Court convicted them under Section 302 IPC and sentenced them accordingly. That is how, they are before this Court with this appeal.
3. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully.
4. The learned counsel for the appellant would submit that P.Ws.1 to 3 do not belong to the occurrence village, as they belonged to Vilangudi Village, which is at a far off place. He would further submit that the presence of P.Ws.1 to 3 at the crucial moment of the occurrence is highly improbable. The learned counsel would next contend that P.W.5 also would not have been present at the time of occurrence. The learned counsel would point out that the conduct of P.W.5 would clearly vouch for the fact that he was not an eye witness to the occurrence. The learned counsel would further contend that in this case the FIR cannot be believed as a genuine document, as there are materials to infer that this document is the loom large on lot of consultations and embellishments. The delay in preferring the complaint and forwarding the complaint to the Court would all go to prove that EX.P1 would not have come into being at the earliest. He would further submit that the occurrence would not have been happened, as it is alleged. He would further submit that if once it is held that the FIR is doubtful, then as a corollary, the entire case should be rejected. The learned counsel would further submit that the narration of the occurrence would reveal that it is highly artificial and the same would not have happened in the manner, as it is projected. The learned counsel would point out that the entire family had been roped in in the case by distributing one injury to each person. He would further submit that the third accused is an old woman, who would not have even carried a knife, as it is alleged by the prosecution. It is highly improbable that she participated in the occurrence and stabbed the deceased. He would further submit that the medical evidence does not corroborate the eye witness account. For all these reasons, according to the learned counsel, the entire case of the prosecution should be doubted and consequently rejected.
5. The learned Additional Public Prosecutor would, however, oppose this appeal. According to him, there is no delay in preferring the complaint and in forwarding the complaint to the Court also. Assuming that there is some delay in the same, that is immaterial in this case, he contended. He would further submit that the presence of P.Ws.1 to 3 is highly probabilised, because P.W.5 himself has stated that due to fear for these accused on account of the earlier occurrence, he informed P.Ws.1 to 3 to come for his help. Accordingly, P.Ws.1 to 3 had come to the occurrence village. The learned Additional Public Prosecutor would further submit that P.W.5's presence cannot be doubted. It is quite natural for him to be present at the crucial moment. He would further submit that it cannot be said that it is artificial for each one accused caused one injury on the deceased. He would lastly contend that the medical evidence clearly corroborates the eye witness account. Thus, according to him, there is no reason to interfere with the conviction and sentence imposed by the trial Court.
6. We have considered the above submissions.
7. In a criminal case, the FIR being the foundation, if the same is found to be a doubtful document, more particularly, when there are more than one accused, such delay assumes much importance and in the event, such delay is not explained away by the prosecution to the satisfaction of the Court, that by itself can be the foundation to doubt the case of the prosecution. In this case, it is alleged that the alleged occurrence was at 8.00 p.m. and the complaint was made on 10.00 p.m. But the FIR had reached the hands of the learned Magistrate only at 01.40 a.m. P.W.20 ?. the Head Constable had stated that he went by a vehicle from Thiruppananthal to Kumbakonam to hand over the FIR to the learned Magistrate. Admittedly, the distance between Thiruppananthal Police Station and the house of the learned Magistrate is less than 20 kms. This Court can take judicial notice of the same. To hand over the said FIR to the learned Magistrate travelling a distance of 15 kms, by all probabilities, it would have taken hardly 45 minutes. But, here, in this case, the delay is enormous and the same has not been explained away by the prosecution. The learned counsel would contend that the FIR would have come into being after arrival of the Police at the place of occurrence, that too, after noticing the injuries on the body. P.W.22 has stated, even in chief examination, that he prepared the observation mahazar at 11.00 p.m. on 16.03.2009. If that be so, he would have arrived at the scene of occurrence between 10.30 p.m. and 11.00 p.m. itself. The observation mahazar was prepared at 11.00 p.m. and thus, it is crystal clear that the entire police team would have been present at the time of occurrence by around 10.00 to 11.00 p.m. As submitted by the learned counsel, the FIR would have been drafted after 10.00 p.m. and that is the reason why, it had reached the hands of the learned Magistrate at 1.40 p.m.
8. Now, turning to the evidence of P.W.5, he has stated, even in the chief examination, that all the three accused came to his house only to kill him. On seeing the accused, he gave a slip and he was hiding. He has further stated that he witnessed the entire occurrence until the accused fled away from the scene of occurrence. Had he been really present at the time of occurrence, he would have rushed towards the deceased to rescue her, if not, when the accused was engaged in stabbing the deceased atleast, after they had left. But he has stated that after the entire occurrence was over, he went to the river bank, where the whole night, he slept. It is highly improbable for a husband to sleep very peacefully for the whole night, after seeing his wife fatally stabbed by three persons. He has stated that he returned to the place of occurrence in the morning at 5.00 a.m., and then went the police station, though the police station is at a distance of 8 kms, which is evident from the FIR. This conduct of P.W.5 in his claim that he was peacefully sleeping for the whole night, even after having seen his wife being stabbed fatally by three people and his conduct in not going to the police station, though the police station is at small distance would all go to show that P.W.5 would not have been present at the time of occurrence.
9. Now, turning to the evidences of P.Ws.1 to 3, admittedly, they belonged to Vilangudi Village, which is at a long distance. Now, the question is whether their presence at the scene of occurrence is probable. The learned counsel for the appellants would point out that they would not have been present at all at the time of occurrence. But the learned Additional Public Prosecutor would submit that according to P.Ws.1 and 5, on the phone message given by P.W.5, P.Ws.1 to 3 had come to his house. All these three witnesses have stated that they witnessed the entire occurrence, but they did not raise any alarm, they did not go to the rescue of the deceased and they did not try to chase away the accused. It is as though they were simply watching the entire occurrence as mute spectators. Going by the close relationship of P.Ws.1 to 3 with the deceased, in our considered opinion, it is highly improbable that they would have acted in such a manner. They also did not go to the police station. This creates enormous doubt about the presence of P.Ws.1 to 3 at the place of occurrence. After the occurrence, P.Ws.1 to 3 did not make any attempt to search for P.W.5. Even according to them, A1 to A3 came there with the murderous intention to kill only P.W.5. If really P.Ws.1 to 3 were present at the scene of occurrence, out of anxiety, as to what had happened to P.W.5, P.Ws.1 to 3 would have gone in search of P.W.5, in which case, they would have found P.W.5 on the river bank. They did not do so. This conduct also creates doubt in the presence of P.Ws.1 to 3.
10. Now, turning to the occurrence, according to P.Ws.1 to 3, it is the case of the prosecution that each one accused caused one injury on the deceased. The accused are husband, wife and son. If really, they had gone to the place of occurrence with the intention to kill P.W.5, they would not have let P.W.5 at all without attacking. There is no reason for them to attack the deceased at all leaving P.W.5. It is highly artificial that each one accused caused one single injury. It is very obvious that after noticing the injuries, in consultation with P.W.22, after 10.00 p.m., the FIR would have been prepared so as to implicate the entire family of the accused in the case. This also creates enormous doubt in the case of the prosecution.
11. Regarding the arrest of the accused and the recovery of the material objects, we do not give much weightage, in view of the fact that at every stage, there is doubt in the case of the prosecution. Though it is contended by the learned counsel for the appellant that medical evidence does not corroborate, the said contention does not persuade us. At the same time, since, we find it difficult to believe P.Ws.1 to 3 and 5, we need not go into the other grounds raised by the learned counsel for the appellants. If once, these witnesses are disbelieved, then, the prosecution has to fail and the accused must succeed. We hold that the prosecution has failed to prove the case against the accused beyond reasonable doubts and therefore, the conviction and sentence imposed by the trial Court is not sustainable.
12. In the result, the criminal appeal is allowed, the conviction and sentence imposed on the appellants are set aside. They are acquitted of all the charges. Fine amount, if any paid by them, shall be refunded to them. Bail bonds shall stand terminated. To 1.The Additional District & Sessions Judge, Thanjavur 2.The Inspector of Police Panthanallur Police Station Panathanallur 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .