(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C to call for the records pertaining to the Judgment made in S.C.No.59 of 2015, dated 30.11.2015 passed by the learned Principal District and Sessions Judge, Tiruchirapalli and set aside the same by allowing this appeal.)
M.V. Muralidaran, J.
1. The appellants are the accused 1 and 2 in S.C.No.59/2015 on the file of the District and Sessions Judge, Thiruchirappalli Division, Thiruchirappalli. The trial court framed charges under Section 302 of I.P.C against this Appellants/Accused 1 and 2.
2. The Trial Court by Judgment dated 30.09.2015 convicted the appellants under Section 302 of I.P.C to undergo Life Imprisonment and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for 6 months. The set off was allowed under section 428 of Cr.P.C. Challenging the said conviction and sentence passed against him, the present appeal has been filed by the appellants/accused 1 and 2.
3. The case of the prosecution is that the deceased Anandakumar and the accused are nearby residents in adjacent houses. The PW-1 Valarmathi is the mother of the deceased, who was given second marriage to PW-4 Arumugam, after the demise of his first wife Valarmathi. P.W.4. namely Arumugam have three sons and a daughter through the first wife Valarmathi and have three daughters including one Suganthi, P.W.-2, through his second wife the P.W.-1. Earlier one Mr.Sasikumar, the 2nd accused velu s brother s son murdered one of the sons of the P.W.-4, Arumugam namely Ramesh Kumar, the son born through Valarmathi, therefore three existed an enmity between the family of the deceased and the accused. Being so, on 1.10.2014 at about 5.P.M, the deceased Anandkumar in an intoxicated mood started shouting by standing in the street. Whereupon second accused velu s wife believing that the deceased Anandkumar is abusing their family, informed her husband velu about the above said incident. In the mean time the deceased was put inside the home by P.W.-1, and P.W.-2. Later at 8.30 P.M., when the deceased after having dinner went out of his home, he was attacked by the accused herein with a Sita fire wood over left shoulder, right side neck and both the legs. At the first moment of attack first accused Ramesh chandran attacked the deceased and later the second accused Velu collecting the very same fire wood stick, from first accused s hand, then attacked the deceased. The accused also pushed the deceased as against the stone in the street floor and dashed him against a stone therein. The deceased Ananda Kumar, sustained injuries on the above said attack and immediately was taken into his house from the street and was laid in bed inside their house by P.W.-1, and P.W.-2,. The P.W.-1, and P.W.-2, laid the deceased in bed believing that he is in deep sleep, out of intoxication. On the next day at 7 A.M, it was found by P.W.-2, that Ananda Kumar was dead. Immediately Ex.P1, Complaint was lodged before the Sessions Court police station by P.W.-1, and P.W.-2 accompanied by P.W.6.
4. On receipt of the EX-P.1, compliant, the Sub-Inspector namely Latha the P.W.-9, registered a case in crime No.364/14 under Section 174 of CR.P.C. as suspicious death vide EX-P.12. The investigation was taken on file by P.W.-11, the Inspector of Police and on his inspection over the place of occurrence EX-P.6, the observation Mahazer and EX-P.13, rough sketch was prepared in the presence of P.W.-6. Thereafter inquest was conducted and inquest report was prepared in EX-P.14, then the deceased body was sent for postmortem to the government hospital, Tirchy by PW-8, the head constable Sunder. Pw-7 namely S .Saravanan the Government Medical Officer conducted postmortem and issued postmortem certificate in EX.P7, finding that there were irregular abrasion found all over the body of the deceased and further found on cross section of brain, a dark red clotted blood of 25 g.m was found inside both the verticals and he opined that the deceased appear to have died of the head injuries.
5. On examination of the doctor, PW-7 by the investigation officer, PW-11, the case was altered from 174 Cr.P.C into section 302 of I.P.C and the corresponding alteration report in Ex-P15 was submitted to the court on 3.10.14 at 7.30 a.m. On receipt of information about the accused, the investigation officer, arrested the accused in the presence of PW-5 Rajeshkumar. The accused were arrested while standing in front of DJ Automobile shop, whereupon Ex-P5, confession was made by the 1st accused and M.O.1, the fire wood stick was handed over by the accused by PW-1 at his own motion. The corresponding mahazar on recovery of M.O.1 is Ex-P4.
6. After filing the charge sheet before the Learned Judicial Magistrate No:2, Thrichy in P.R.C.No. 1 of 2015, the case was committed to the Sessions Judge, Thiruchirappalli Division, Thriuchirappalli and came to be numbered as S.C.No.59/2015. In this case, 11 witnesses were examined as prosecution side witnesses and 16 Exhibits were marked on the side of prosecution and there is one material object produced before the Trial court. There was no witness examined and no exhibits marked on the side of the accused.
7. In this case, PW-1 Valarmathi and PW-2 Suganthi is the mother and sister of the deceased Anandakumar respectively, deposed that on 1.10.14 at 5 p.m. the deceased Ananthakumar was found shouting in the street in an intoxicated mood. Thereafter at 8 p.m the accused herein attacked the deceased Ananthakumar with a Sita Fire Wood over his right side shoulder, right neck and both the legs. In vengeance over the murder of one Ramesh kumar, the accused herein attacked the deceased. The deceased was pushed and made to hit as against a stone found in the street. Therefore the deceased Ananthakumar sustained head injury. On the said night PW-1 and PW2 beliving that the deceased is in a deep sleep out of intoxication, laid him in bed inside the house. On the next day morning at 7 a.m the said Ananthakumar was found dead with a bleeding in his nostrils. Therefore both PW-1 and PW2 called upon the ambulance service, further rushed to the respondent police and has lodged the complaint in EX.P1.
8. PW-3 namely karthi a nearby resident examined as prosecution witness turned hostile. PW-4, namely Arumugham, the father of the deceased deposed that he was out of station on the day of occurrence and on his return on 02.10.14, he was informed by PW-1 and PW2 about the incident. He stated that there existed an enmity between the family of the accused and deceased in regard to the murder of one Ramesh Kumar.
9. PW-5 namely P.V.Rajeshkumar the Village Administrative officer deposed that on the information of the investigation officer P.W.11, he went in front of D.J Automobiles in othakadai, wherein the accused was arrested by PW-11. Confession in EX-P5, was made by first accused that they attacked the accused and on his own motion the accused handed over material object in M.O.1, Sita Fire wood .P.W.6, namely V.Muthu is a Mahajar witness, who also accompanied P.W.1 and P.W.2, to the police station to lodge EX.P1.
10. PW-7 namely S .Saravanan who conducted postmortem deposed that dark red abrasion were found along the body of the deceased and opined that the death appear to caused head injury clotted blood 25 gm was inside both the verticals the further opined that the deceased appear to have died of the head injuries. The medical officer further deposed that the abrasions may be occurred due to some other reason, besides that the head injury might be occurred out of an accidental hit out of intoxication.
11. PW-11,namely S.Umasankar, the investigation officer deposed that pursuant to the registration of F.I.R, in Ex-P12, by P.W.9, namely Latha, Under Section 174 Cr.P.C, he took investigation and visited the place of occurrence and he made ready sketch and Mahazer Ex-P13, and Ex-P-6, respectively. After examining P.W.7, the case Under Section 174 Cr.P.C, was altered into section 302 of I.P.C. He further deposed that on receipt of information about the whereabouts of the accused, he in the presence of PW-5 has arrested the accused in front of DJ Automobile shop, Trichy. He deposed that a confession was made by the 1st accused admitting their crime and thereby the accused handed over M.O.1, from his house.
12. On the evidence taken by the trial court namely the Sessions Judge, Thirchirappalli division, Thirchirappalli came to the conclusion that the charges laid against the accused were proved by the prosecution through the evidences of P.W.1, and P.W.2,
13. In the above circumstance relying upon the version of P.W.1, and P.W.2,the learned Trial Judge convicted the accused for the offences under sections 302 of I.P.C holding that the prosecution case was proved. Against the said conviction, the present appeal has been filed.
14. We have heard Mr.S.Vinayak, learned counsel for the appellants and Mr.C.Ramesh, learned Assistant Public Prosecutor for the respondent and we have also perused the records carefully.
15. In this case, going through the evidences and documents produced by the prosecution, it is found that the story of the prosecution in respect of the motive behind the alleged attack by accused is that motive/ enmity arisen out of the murder of one Ramesh Kumar, the son of P.W.4. However there is no say by both P.W.1 and P.W.2 in Ex.P1 such that an enmity prevailed between the families of accused and the deceased out of murder of one Ramesh kumar. Further from Ex.P1 the complaint, it is found that neither P.W.1 nor P.W.2 has stated/alleged that the deceased was attacked by the accused by M.O.1. Ex.P1 reads out that there arose only a wordy altercation between the accused and deceased, which was intervened and stopped by P.W.1 and P.W.2 immediately, it is usual for the deceased to intoxicate and enter into quarrel. In both chief and cross examinations P.W.1 and P.W.2 stated that they have not seen any injuries over the body of the deceased. It is also supported by the evidence of P.W.7 that no blood injuries found in the body of the deceased vide EX.P-7. It is unusual that P.W.1 and P.W.2 states they have looked in to the deceased only in the next morning, in a circumstance alleged to be attacked in the previous evening itself.
16. At this juncture, on perusing the deposition of P.W.6 namely V.Muthu, none other but the brother s son of deceased s father, who is also the attesting witness of Mahajar EX.P6, has specifically stated that the place of occurrence is not at all visible from that of the house of P.W.1 and P.W.2, as alleged by the prosecution. It is relevant to be noted that witness of P.W.6, a close relative of deceased as well as the P.W 1 and P.W 2 itself, falsify the witness of P.W.1 and P.W.2. In the absence of the disclosure of attack by the accused with M.O.1 in Ex P1 it is hard to believe into the subsequent discrepant versions of P.W.1 and P.W.2. The most fatal factor to the prosecution is that the said attack is alleged to have taken place at 8.30 P.M, whereas there is completely no say about the availability/ source of Light in the place of occurrence. Moreover there is no indication as to the place where the witnesses P.W 1 and P.W. 2 witnessed the occurrence. P.W.1 has also stated vide cross examination that she never made an effort to stop the quarrel. Thus the version of P.W 1 and P.W 2 remains incredible.
17. On the taking into account the deposition of P.W.5, namely P.V.Rajeshkumar, the Village Administrative officer, has deposed that the accused was found along with the investigation officer, even before his arrival at DJ Automobile shop, therefore the confession that is being recorded by the respondent police and the mode of recovery of M.O.1 serves as doubtful and unreliable.
18. In so for as the place of occurrence the prosecution apparently failed to establish the place of occurrence, such that P.W.1, and P.W.2, claims the occurrence has taken place in front of velu s house, whereas as per E.X.P6 the prosecution states that the occurrence has taken place in front of one Ramasamy s house. Thus the occurrence place remains doubt full and discrepant. Though it is alleged that the occurrence is said to have taken place in a prime/ busy street, there is no independent witness put forth by the prosecution. The version of the interested witnesses i.e P.W 1 and P.W.2 is also being falsified by the version of P.W. 6.
19. In view of the above narration and discussion, that there is discrepancy as to the place of occurrence and provided that P.W.6, a close relative of deceased stating that P.W.1, and P.W.2 will definitely be not in a position to visualize the place of occurrence. Besides, in the absence of statement that the deceased was been attacked with M.O.1 or was been pushed as against the floor in Ex P1 came to be lodged 14 hours after the attack and no independent witness being examined, this court feels hard to believe the version of prosecution. Since the prosecution has not proved the same beyond all reasonable doubts. Therefore the accused is acquitted from all the charges by giving benefit of doubt.
20. In the result, the criminal appeal is allowed and conviction and sentence imposed on the appellants are hereby set aside and the appellants are acquitted and they are directed to be set at liberty forthwith unless their presence is required in connection with any other case. Fine amount paid if any by the appellants shall be refunded to them.