Full Judgment
01. 02/2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal (MD) No.453 of 2005 State rep. by The Asst.Superintendent of Police, Kovilpatti West Police Station, Tuticorin District. (Crime No.19/2001) .. Appellant vs. 1.Murugan 2.Selvam 3.Kandasamy 4.Raju 5.Alangaram Pillai 6.Balasubramanian .. Respondents Criminal Appeal filed under Section 378 of the Cr.P.C against the Judgment dated 03.05.2005 in S.C.No.10/2002 on the file of the Second Additional District and Sessions Judge, Tirunelveli. !For appellant ... Mr.A.Ramar Additional Public Prosecutor ^For respondents- 1, 2, 5 and 6 ... Mr.S.Mahendrapathy, Legal Aid Counsel For respondents 3 and 4... Mr.S.Kanagarajan :JUDGMENT (Judgment of the Court was delivered by S.NAGAMUTHU, J) This is an Appeal against acquittal. The respondents are the accused in S.C.No.10 of 2002 on the file of the Second Additional District and Sessions Judge, Tirunelveli. They stood charged for various offences as detailed below. Charges Accused Nos. Charge u/s. 1st Charge A.1 to A.4 148 IPC 2nd Charge A.5 & A.6 147 IPC 3rd Charge A.1 to A.6 341 IPC 4th Charge A.1 to A.6 302 r/w 34 IPC 5th Charge A.5 323 IPC 6th Charge A.1 to A.6 3(2)(v) of the SC/ST (PoA) Act The trial Court by judgment dated 3.5.2005 acquitted all the respondents/accused. Aggrieved by the same, the State is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:- The deceased in this case was one Saravanan alias Amalraj. He was a student of law doing the second year course in the Government Law College at Tirunelveli. He was an active member of the Indian Democratic Youth Federation, which is an organisation, affiliated with the Communist Party (Marxist). He was the Union Secretary of the said Federation and he was also the Branch Secretary of the Community Party (Marxist) of Manthithoppu Village in Tirunelveli District. PW.2 Balamurugan is also an active member of the said Federation as well as the party. The fifth accused Alangaram Pillai had encroached upon public place in Manthithoppu Village. The deceased opposed the same. He made a complaint to Kovilpatti West Police Station in respect of the said encroachment. This resulted in ill feeling between the two. This is stated to be the motive between the fifth accused and the deceased. (ii) Accused Nos.1 to 4 are the sons of the fifth accused and the sixth accused is the son-in-law of fifth accused. Accused Nos.1 to 5 are the residents of Manthithoppu Village and the sixth accused is a resident of Kovilpatti. While so, it is alleged that on 17.3.2001 at 10.30 p.m., PWs.1, 2 and the deceased were returning to their village Manthithoppu in a TVS Motor Cycle. When they were nearing Annamalainagar on their way, they found a tractor parking across the road. PW.2 was then riding the motor cycle. He stopped the motor cycle as they could not proceed further because of the parking of the tractor. The deceased and PW.1 got down from the motor cycle. At that time, they found A.5 and A.6 coming from the back of the tractor. They were armed with sticks. They shouted at the deceased and cried out: "kill this fellow, Amalraj". Accused Nos. 1 to 4 suddenly emerged at the scene of occurrence. They all were also armed with aruval. They surrounded the deceased. Then A1 cut the deceased on his neck, A2 cut him on his left hand, A3 cut him on his head and A4 cut him on his head. The deceased fell down. Then, all the four accused (A1 to A4) cut the deceased indiscriminately with aruvals. The fifth accused attacked PW.1 with stick on his left hand causing a simple hurt. A6 did not attack anybody. The deceased was in a pool of blood. All the accused fled away from the scene of occurrence. (iii) It needs to be mentioned that, according to the case of the prosecution, when the occurrence was in progress, PW.3, the brother of the deceased had also come to the place of occurrence and he also witnessed the entire occurrence. After the occurrence was over, PW.2 fled away from the scene of occurrence in his motor cycle. PW.3 was sitting by the side of the dead body and he was weeping. PW.1 proceeded to the Police Station straight away. He reached the Police Station at 12.30 a.m., on 18.3.2001. (iv) PW.16 was the then Inspector of Police, attached to Kovilpatti West Police Station. On receipt of a written complaint from PW.1, PW.16 registered the case in Crime No.119/2001 under Sections 147, 148, 341 and 302 IPC. Then, he forwarded the FIR and the complaint to the learned Judicial Magistrate. The said document reached the learned Judicial Magistrate at 2.15 a.m., on 18.3.2001 (vide endorsement found at Ex.P29 FIR). Then, he handed over the case diary to PW.17, the then Inspector of Police, attached to Kovilpatti West Police Station for investigation. (v) Taking up the case for investigation, PW.17 reached the place of occurrence at 1.00 a.m., on 18.3.2001. At the place of occurrence, he prepared an Observation Mahazar and a Rough Sketch regarding the place of occurrence. He conducted inquest on the body of the deceased and prepared Ex.P32 inquest report. He examined PWs.1 to 3 and a few more witnesses on the spot during inquest. Then, PW.17 forwarded the body for post-mortem. (vi) PW.7, Dr.Maheswari, conducted autopsy on the body of the deceased at 6.45 a.m., on 18.3.2001. She found the following injuries:- (i)A cut injury about 13 cm x 6 cm x bone deep exposing the cut ends of the bone and brain matter over the left Tempero parieto occupital region. (ii)Another cut injury 12 cm x 4 cm x bone deep 1 cm below the 1st wound (iii)Cut injury 18 cm x 7 cm x bone deep extending from the (L) cheek to the occipital region, exposing the cut ends of the bones and brain matter. Left ear was cut exposing the cartilage. (iv)Cut injury 12 cm x 5cm Bone deep over the nape of neck extending to the (R) suprascapular region exposing the cut ends of bones muscles. (v) Cut injury 4 cm x 2 cm x 1 cm over the (L) shoulder. (vi) 10 cm x 4 cm x bone deep cut injury exposing the muscles over the (L) shoulder. 4 cm below the 5th wound. (vii)Cut injury 6 cm x 2 cm x 1 cm over the (L) scapular region. (viii)Cut injury 3 cm X 0.5cm x 0.5cm over the (R) scapular region. (ix)Cut injury 11 cm x 3 cm x bone deep exposing the muscles over the (L) scapular region 10 cm below the wound No.7 (x)A cut injury 24 cm x 10 cm x bone deep over the left side of chest exposing the cut bones (ribs) and muscles Left Pleenal cavity and lung Parenchyna exposed. (xi)A cut injury 6 cm x 0.5 x 0.5 cm below the 10th wound. (xii) A cut injury 8 cm x 2 cm x 1 cm size 4 cm below the 11th wound. (xiii) A cut injury 4 cm x 3 cm x 1 cm over (L) thigh posterior aspect. (xiv) A cut injury 9 cm x 3 cm x bone deep extending from the (L) thumb to the index finger dorsal aspect hanging skin tag only. (xv) A cut injury 1 cm x 0.5cm x 2.5 cm over the (L) middle finger. (xvi) Cut Injury 6 cm x 3 cm x 2cm exposing the cut bones over the (R) forearm. (xvii)A cut injury 2 cm x 1 cm x 1 cm over the (L) hand near the index finger dorsal aspect. Ex.P15 is the Post-Mortem Certificate. According to her opinion, the deceased died of shock and haemorrhage due to multiple injuries found on the dead body. She has further opined that the death would have occurred 8 - 12 hours prior to autopsy. (vii) PW.17 continued the investigation and arrested Accused Nos.1, 2 and 4 on Kovilpatti to Tirunelveli road near Bethel School, in the presence of PW.4 and another witness, on 19.3.2011. On such arrest, the first accused made a voluntary confession between 5.30 a.m., and 6.30 a.m.,. The second accused made a voluntary confession between 6.30 a.m., and 7.30 a.m.,. The fourth accused made a voluntary confession between 7.30 and 8.30 a.m,. In the confession given by the first accused, he had disclosed the place where he had hidden an aruval, a shirt and a lungi. In pursuance of the said statement, he took the police and witnesses to the place and produced the said materials. PW.17 recovered the same under a Mahazar in the presence of the same witnesses. Similarly, in the disclosure statement made by the second accused, he had disclosed the place where he had hidden an aruval, ashirt and a dhothi. In pursuance of the same, he took the police and witnesses to the said place and produced the said materials. PW.17 recovered the same under a Mahazar. In the disclosure statement made by the fourth accused, he had stated the place where he had hidden an aruval, a shirt and a lungi. In pursuance of the same, he took the police and witnesses to the place and produced the said materials. PW.17 recovered the same under a Mahazar. On 19.3.2001, PW.17 recovered the dress materials found on the body of the deceased. Then, on 20.3.2001 at 5.00 a.m., he arrested the third accused, Kandasamy in the presence of PW.5 and another witness. On such arrest, he made a voluntary confession, in which he disclosed the place where he had hidden an aruval. In pursuance of the same, he took the police and witnesses to the said place and produced the aruval. PW.17 recovered the same. On 25.3.2001, PW.17 arrested the fifth accused at Kovilpatti to Thiruvengadam Junction Road. On such arrest, he made a voluntary confession in the presence of PW.5. In the said confession, he disclosed the place where he had hidden sticks. In pursuance of the same, he took the police and witnesses to the said place and produced the sticks. PW.17 recovered the same in the presence of witnesses under a mahazar. PW.17 obtained a certificate from the Tahsildar to the effect that the deceased belonged to Scheduled Caste. Thereafter, investigation was transferred to the Deputy Superintendent of Police (PW.18). (viii) PW.18 was the then Deputy Superintendent of Police, Kovilpatti. He took up the case for further investigation. He examined the same witnesses and verified the correctness of the statements. He obtained a community certificate for the accused to show that he did not belong to either Scheduled Caste or Scheduled Tribe. Finally, he laid charge sheet against the accused under Sections 147, 148, 341, 323, 302 and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
3. Based on the above materials, the trial Court framed as many as 6 charges as detailed in the first paragraph of this Judgment. The accused denied the charges and pleaded innocence. Therefore, they were put on trial.
4. In order to prove the charges, on the side of the prosecution, as many as 18 witnesses were examined, 33 documents were marked besides 19 Material Objects. Out of the said witnesses, PWs.1 to 3 are the alleged eye-witnesses who have vividly spoken to about the entire occurrence and the individual overt- acts. PW.7 has spoken to about the cause of death. PW.5 has spoken to about the arrest of the accused and consequential recovery of Material Objects. PWs.17 and 18 have spoken to about the investigation done by them.
5. When the above incriminating materials of the witnesses 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 witness on their side nor to mark any document. Having considered the same, the trial Court disbelieved the evidences of PWs.1 to 3 and acquitted the accused under all the charges, thereby rejecting the case of the prosecution. The State feels aggrieved by the same. That is how the State is before this Court with this appeal.
6. We have heard the learned Additional Public Prosecutor appearing for the State and the learned counsel appearing for the respondents and we have also perused the records carefully.
7. As we have already pointed out, PWs.1 to 3 are witnesses to the occurrence. The trial Court has rejected their evidences disbelieving their very presence at the place of occurrence. One of the grounds upon which the lower Court has disbelieved their presence at the scene of occurrence is that there is no consistency in respect of the place of occurrence in their evidences. The next ground is that the presence of PWs.1 and 3 at the crucial moment is doubtful. The trial Court has also given various other reasons for rejecting the prosecution case.
8. We have gone through the entire evidence. Admittedly, A.1 had lost one of his legs long before the occurrence. PW.1 has categorically admitted that A.1 cannot walk without the help of two arm sticks. Only by using two sticks under the armpits, he could limp and walk. It is the case of the prosecution that he participated in the occurrence, he came out of the tractor armed with an aruval and commenced the attack by making a severe blow on the neck of the deceased. This has been taken note of by the trial Court to come to the conclusion that it is highly unbelievable that A.1 would have participated in the occurrence. Further, it is the evidences of PWs.1 to 3 that the first accused, after the deceased had fallen down, repeatedly cut the deceased. As has been pointed out by the lower Court, it is highly unbelievable that the first accused would have cut the deceased repeatedly as it is projected by the prosecution as it is practically impossible for him to even stand. This clearly goes to show that there is no truth in the case and there is falsehood.
9. With this initial doubt in the case of the prosecution, let us now make further progress. PW.3 is none other than the brother of the deceased. The occurrence had not taken place nowhere near his house. It took place at a lonely place that too far off from the village. The occurrence was at about 10.30 p.m.,. PW.3, the brother of the deceased, would say that he was returning from cinema theatre towards his village and at that time, he witnessed the occurrence. Thus, according to him, his presence at the place of occurrence was by mere chance. The trial Court has disbelieved his presence as the trial Court was not impressed by the explanation of PW.3 regarding his chance presence.
10. PWs.1 and 2 have stated that they came along with the deceased in the motor cycle. After the occurrence was over, it is the case of PW.2 that he fled away from the scene of occurrence with the motor cycle. This is an unnatural conduct on the part of PW.2. PW.2 is not a person who does not have familiarity with the police. During cross-examination, it is admitted that on an earlier occasion, in the year 2003, he gave evidence in a criminal case against the second accused. The second accused was involved in a double murder case as an accused. In that case, according to him, he was later on, acquitted by the trial Court. There was another case relating to pathway. A man who was already familiar with the proceedings of the Court and the police and the close friend of the deceased claims that he simply went away from the scene of occurrence in his motor cycle. PW.2 is a active member of the Communist Party of India and a close associate of the deceased. He involved himself in all the political activities and other activities of the deceased. It is highly unbelievable that he would have simply escaped to his house, after the occurrence, that too taking the motor cycle. His further admission is that he came to the place of occurrence when the Inspector of Police had arrived and started investigating the case. This conduct of PW.2 has been taken note of by the trial Court to disbelieve his evidence.
11. Now, coming to the evidence of PW.1, he is also a close associate of the deceased, he states that immediately after the occurrence, he proceeded to the Police Station for the purpose of making a complaint. The distance between the place of occurrence and the police station is hardly 3 Kms vide (Ex.P29 FIR). It is not explained to the Court as to why it took two hours for him to reach the Police Station to make the complaint. The FIR had reached the Court only at 2.15 p.m.,. The house of the learned Judicial Magistrate and the Police Station are situated in the very same place. When that be so, the FIR would have reached the Court within a short time, at least, before 1.00 p.m., but it had reached the Judicial Magistrate only at 2.15 a.m.,. This delay has also been taken note of by the trial Court creating suspension in the case of the prosecution.
12. According to the case of the prosecution, PW.1 had already left for the Police Station after the occurrence and PW.2 had gone to his house after the occurrence. But PW.3, brother of the deceased was at the place of occurrence. The conduct of PW.3, in our considered opinion, is highly unnatural. Because, as he happens to be the brother of the deceased, he would not have waited at the place of occurrence without either going to his village or going to the Police Station. He has stated that he was sitting by the side of the dead body. This conduct is slightly unnatural. He has further stated that within half an hour of the occurrence, the villagers came to the place of occurrence and thereafter, he went to the Police Station. According to the case of the prosecution, as soon as the occurrence was over, the accused ran away from the scene of occurrence with the weapons. When the police arrived at the scene of occurrence, the tractor and trailer were not there. According to PW.3, when he was setting at the side of the dead body weeping, the villagers had arrived at. After the arrival of the villagers only, he went to the Police Station. When that be so, it is not explained to the Court as to how and when the tractor disappeared. It is in the evidence of PW.1 that from the Police Station as soon as the case was registered, the Inspector of Police took him to the place of occurrence. But it is curious that at that time, the tractor was not available there. The tractor was seized from a different place on the next day. Had it been true that the tractor was parked across the road, had it been true that the accused fled away from the scene of occurrence leaving behind the tractor, certainly, the tractor would have been available at the time when the Inspector of Police arrived at the scene of occurrence in which the tractor would have been seized. This is yet another important circumstances creating doubt about the case of the prosecution.
13. Similarly, the disappearance of the motor cycle is also a suspicious circumstance. According to PW.2, he had taken the motor cycle to his house. There was no bloodstains found on the motor cycle. It was only by the side of the motor cycle, according to the case of the prosecution, the deceased was indiscriminately cut and killed. Had it been true, there would have been bloodstains on the motor cycle but bloodstain was not found on the motor cycle. This is yet another suspicious circumstance.
14. Admittedly, PWs.1 to 3 were all arch enemies of the accused family. In the accused family, all have been roped in as accused. As we have pointed out, A.5 is the father of A.1 to A.4 and A.6 is his son-in-law. This shows that there is an attempt to implicate all the male members of the accused family. As we have already highlighted, the first accused is incapable of walking as he had already lost his one of his legs. Even, he has not been spared. Thus, an attempt has been made to take revenge on the entire family members of the accused.
15. As we have pointed out, the presence of PWs.1 to 3 is highly doubtful. They are chance witnesses and the explanation offered by them for being present at the scene of occurrence by chance is not believable. The conduct of PWs.1 to 3, as we have already highlighted is highly unnatural. They are inimical witnesses. Therefore, the evidences require very close scrutiny. If the same is done, the prosecution case is doubtful.
16. The initial presumption of innocence of the accused is strengthened by the acquittal recorded by the trial Court. Unless the said presumption is rebutted by the prosecution, it is not possible for this Court while dealing with the appeal against the acquittal to interfere with the same. It is the law that in a case of appeal against the acquittal if there are two views, which are equally possible, one in favour of the accused and the other against him, normally, the view taken by the trial Court should be preferred. Unless the view taken by the trial Court is shown to be an impossible view, it is not permissible for this Court to substitute the view of the trial Court by the view of this Court so as to reverse the order of acquittal. In the case on hand, we find no reasons to take a different view than the view taken by the trial Court. Therefore, we are inclined to confirm the acquittal of the accused.
17. In the result, the Criminal Appeal fails and the same is dismissed and the acquittal recorded by the trail Court is hereby confirmed. We appreciate the services rendered by the learned Legal Aid Counsel, Mr.S.Mahendrapathy, who has appeared for Respondent Nos.1,2,5 and 6. We direct the Legal Aid Services Authority to pay his remuneration. asvm To 1.The Second Additional District and Sessions Judge, Tirunelveli. 2.The Asst.Superintendent of Police, Kovilpatti West Police Station, Tuticorin District. (Crime No.19/2001) 3.The Additional Public Prosecutor, Madurai Bench of Madras High court, Madurai.